Flood v. Leahy

• Decision Date: 02 April 1903
• Citation: 66 N.E. 787,183 Mass. 232
• Parties: FLOOD et al. v. LEAHY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 232

66 N.E. 787

FLOOD et al. v. LEAHY et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 2, 1903

COUNSEL

John V. Beal, for petitioners.

Chas F. Choate, Jr., for respondents.

OPINION

HAMMOND J.

The power of a town to raise money by taxation is not commensurate with the power to tax which is conferred by the Constitution upon the Legislature. It is entirely a creature of statute, including only so much of the general power as the Legislature delegates to the town. The only question raised in this case is whether the purpose for which the money was to be expended was a 'necessary charge' within the meaning of the last clause of Rev. Laws, c. 25, § 15. This clause has been called many times to the attention of the court, and its general scope has been quite clearly outlined.

So far as material to this case, towns are to be considered as quasi corporations, with limited powers coextensive with the duties imposed upon them by statute or usage. In Vincent v Nantucket, 12 Cush. 103, this court, speaking through Merrick, J., said: 'Their contracts will be valid when made in relation to objects concerning which they have a duty to perform, an interest to protect, or a right to defend. But here is at once the extent of their right and their power. They cannot engage in enterprises foreign to the purposes for which they were incorporated, nor assume responsibilities which involve undertakings not within the compass of their corporate powers.' The statute in question has been construed in consonance with these general principles. See among other cases, Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145; Parsons v. Inhabitants of Goshen, 11 Pick. 396; Minot v. Roxbury, 112 Mass. 1, 17 Am. Rep. 52--in which cases the action of the town was declared illegal; and Woodbury v. Hamilton, 6 Pick. 101; Allen v. Taunton, 19 Pick. 485; Curran v. Holliston, 130 Mass. 272, and Dunn v. Framingham, 132 Mass. 436--in which the action was declared legal.

It is to be noted that the duty, right, or interest must be corporate, as distinguished from the individual duty, right, or interest of the inhabitants of the town. No matter how important or general these individual rights or duties are, they do not thereby become corporate within the meaning of the rule. There can be no doubt, for instance, that in the case of a threatened incursion of an enemy in time of war it would be of the highest importance to the individual interests of the inhabitants that proper steps should be taken for defense; and yet it was held in Stetson v. Kempton, ubi supra, that, there being no corporate duty resting upon the town to provide for the defense, it could not lawfully raise money by taxation for that purpose.

The cases of Vincent v. Nantucket, ubi supra, and Fuller v. Groton, 11 Gray, 340, when contrasted with each other furnish a good illustration of the application of the rule which has been followed in construing the statute. In the first case it was held that the town was not bound by its corporate vote to pay the expenses incurred by a field driver in defending a suit brought against him for taking up and impounding cattle running at large contrary to law. The ground of the decision was that: 'In relation to field drivers the whole corporate power of a town is exercised and exhausted in their election. It has afterwards no guardianship, control, or authority over them, and they are not acting in relation to any corporate duty imposed upon the town.' In the second case an appropriation by a town to pay the expenses incurred by members of the school committee in defending a suit brought against them for an alleged libel contained in their annual report was held valid upon the ground that there was imposed upon the town the corporate duty to raise money for...