Cox v. Segee

• Decision Date: 07 September 1910
• Citation: 206 Mass. 380,92 N.E. 620
• Parties: COX et al. v. SEGEE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

206 Mass. 380

92 N.E. 620

COX et al. v. SEGEE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 1910

COUNSEL

Burke & Walsworth, for petitioners.

Cutler & James, for respondents.

OPINION

BRALEY J.

The town of Revere enacted a by-law which provided: 'That assessors shall keep a record of all abatements of taxes, the names of the parties taxed, and the reasons for and amounts of abatements. And they shall annually make a report of the valuation of real and personal and total, the rate of taxation, the amount of money raised, and amount of money received as taxes from other sources than taxation by the town, with a full report of all abatements with the amounts of the abatement, the names of the persons benefited, and the reasons therefor, and they shall at least once in two years cause to be printed and incorporated in the annual town report the tax and valuation list for that year.' It is conceded that while abatements have been granted, no report of the amounts with the name of the person assessed, has been rendered, and this petition is brought for a writ of mandamus to compel the assessors, who are made respondents, to comply with the by-law.

The first contention is that the petitioners are not individually entitled to relief, as any rights which they may have as citizens are held and enjoyed in common with the general public, whose officers alone can enforce the remedy. But if in the performance of their official duties, the respondents were subject to the by-law, the petitioners may compel its enforcement by mandamus, even if upon their request the selectmen refused to act, and the Attorney General after hearing the relators declined to intervene. The interest of the petitioners as inhabitants and taxpayers of the town is sufficient to enable them to compel, by appropriate process, the performance of a public duty without the intervention of the Attorney General. Brewster v. Sherman, 195 Mass. 222, 224, 80 N.E. 821; Weld v. Board of Gas & Electric Light Commissioners, 197 Mass. 556, 557, 84 N.E. 101. Compare Fowler v. Brooks, 188 Mass. 64, 74 N.E. 291.

It is further contended that, the town having been without authority to enact the by-law, the respondents were under no obligation to comply with its provisions. If towns derive their corporate existence by the will of the Legislature, yet in the early settlement of the state they came into existence without having been created by royal charter, or by legislative act. The General Court, however, from time to time has conferred upon them authority to regulate and manage their internal affairs, and for this purpose the corporate power of towns to adopt reasonable by-laws not repugnant to law has been recognized and sanctioned from early colonial times. 1 Mass. Col. Rec. 172, 11 Plymouth Colony Rec. 32 110, 192; 1 Prov. Laws, 1692-93, c. 28, §§ 3, 5. By long usage and independently of statutory provisions, ancient customs in many instances ripened into regulations, which have been upheld when expressed by a vote of the town if not opposed to the general laws. The subject is quite fully discussed by Chief Justice Shaw in Willard v. Newburyport, 12 Pick. 227, and in Spaulding v. Lowell, 23 Pick. 71, 77, and by Chief Justice Gray in Lynn v. Nahant, 113 Mass. 433. St. 1785, c. 75, § 7, which repealed previous enactments, empowered towns, 'to make and agree upon such necessary rules, orders and by-laws for the directing, managing and ordering the prudential affairs of such towns as they shall judge must be conducive to the personal welfare and good order thereof, and to annex penalties for the observance of the same, * * * provided that they by not repugnant to the general laws of government,' and by the second article of amendment to the Constitution, which was ratified and adopted April 9, 1821, such by-laws were made 'subject at all times, to be annulled by the General Court.' The subsequent revisions found in Rev. St. 1836, c. 15, § 13, Gen. St. 1860, c. 18,§ 11, Pub. St. 1882, c. 27, § 15, which were in force when the present by-law was adopted, and in Rev. Laws, c. 25, § 23, contain similar provisions. It undoubtedly was within the power of the Legislature to have authorized towns to prescribe and regulate the duties of assessors, but not having delegated this power in express terms, if the right exists, it must be found by implication in the general phrase, empowering them to provide for the direction and management of their prudential affairs. In an...