Ellison v. City of Haverhill

• Decision Date: 23 June 1941
• Citation: 35 N.E.2d 202,309 Mass. 350
• Parties: ELLISON et al. v. CITY OF HAVERHILL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 350

35 N.E.2d 202

ELLISON et al.

v.CITY OF HAVERHILL.

Supreme Judicial Court of Massachusetts, Essex.

June 23, 1941.

Suit by Benjamin M. Ellison and others, as taxable inhabitants of the City of Haverhill, against the City of Haverhill, to restrain the expenditure of a certain sum for a public parking place. From an adverse decree, the petitioners appeal.

Decree affirmed.Appeal from Superior Court, Essex County; Greenhalge, Judge.

Argued before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

E. B. Karp, of Haverhill, for petitioners.

W. C. McDonald, City Sol., of Haverhill, for respondent.

QUA, Justice.

More than ten taxable inhabitants of Haverhill petition, under G.L. (Ter.Ed.) c. 40, § 53, to restrain the expenditure of the sum of $10,000 appropriated by the municipal council to purchase certain land ‘for a public parking place.’ An order to appropriate the money and an order directing the purchase of the land were passed by the municipal council. The appropriation order was adopted by the votes of three out of the five members, the other two being absent. The decisive question is whether the order making the appropriation required a vote of two thirds of the five members of the council, which of course would mean at least four votes.

G.L. (Ter.Ed.) c. 40, § 14, as amended, provides that ‘no land * * * shall be taken or purchased under this section * * * until an appropriation of money * * * has been made for the purpose by a two thirds vote of the city council or by a two thirds vote of the town * * *.’ We pass over the respondents' contention that this section does not apply to the purchase now proposed-see G.L. (Ter.Ed.) c. 40, § 5(33)-as we are of the opinion that in any event section 14 requires no more than the votes of two thirds of the members of the council present at the meeting. ‘In the absence of statutory restriction the general rule is that a majority of a council or board is a quorum and a majority of the quorum can act. Williams v. School District in Lunenburg, 21 Pick. 75-82,32 Am.Dec. 243. See Sargent v. Webster, 13 Metc. 497, 504,46 Am.Dec. 743. And in National Prohibition Cases, 253 U.S. 350, [at page 386],40 S.Ct. 486, 588, 64 L.Ed. [946], it was said, ‘The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present assuming the presence of a quorum and not a vote of two-thirds of the entire membership, present and absent.’' Merrill v. Lowell, 236 Mass. 463, 467, 128 N.E. 862, 863;Missouri Pacific Railway v. Kansas, 248 U.S. 276, 39 S.Ct. 93, 63 L.Ed. 239, 2 A.L.R. 1589. In the Merrill case, 236 Mass. at page 467, 128 N.E. 862 these principles were stated to be ‘well established.’ They are reinforced by the recent decision in Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 586, 27 N.E.2d 1, where the cases are collected.

If section 14 still read as it did when it was enacted as St. 1915, c. 263, § 1, it could be argued that a contrast was intended between the ‘two thirds vote of the city government in cities' and the ‘vote of two thirds of the voters present and voting thereon at any regular meeting called for the purpose in towns,’ but when the section was incorporated into the General Laws substantially the present wording was adopted. It now seems impossible to construe the words ‘two thirds vote’ when applied to the ‘city council’ as having a different meaning from that of the same words appearing in the same line when applied to ‘the town.’ We are unable to believe that when the Legislature enacted the compilation known as the ‘General Laws' it intended to change the provision so plainly expressed in the earlier statute that a town might make the appropriation by a vote of two thirds of the voters present and voting into a requirement that two thirds of all voters of the town must vote...