Kittredge v. Inhabitants of North Brookfield

• Decision Date: 13 January 1885
• Parties: Elizabeth P. Kittredge, executrix, v. Inhabitants of North Brookfield
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 286

Elizabeth P. Kittredge, executrix, v. Inhabitants of North Brookfield

Supreme Judicial Court of Massachusetts

January 13, 1885

Argued October 3, 1884.

Worcester.

Judgment for the defendant.

C. A Merrill, for the plaintiff.

R Hoar, for the defendant.

C. Allen & Colburn, JJ., absent. Morton, C. J.

OPINION

Morton, C. J.

This is an action to recover back taxes for the years 1881, 1882, and 1883, paid under protest by Charles Kittredge, of whose will the plaintiff is executrix. At a town meeting held on January 29, 1875, the town of North Brookfield voted to subscribe for shares in the North Brookfield Railroad Company, a corporation to be formed under the St. of 1872, c. 53, for the purpose of building a railroad from North Brookfield to East Brookfield, to the amount of $ 90,000; and also voted to become an associate for the formation of said corporation. At an adjournment of the meeting, held on June 14, 1875, the town voted that, in order to pay this subscription, its treasurer be authorized to borrow a sum not exceeding $ 90,000 "in amounts as may be required by the directors," and to give therefor the notes or bonds of the town payable $ 9,000 in each year, commencing with that year, and ending with the year 1884, both inclusive. Bonds were issued in pursuance of this vote, of which $ 9,000 became due in each of the years 1881, 1882, and 1883, and taxes were levied in each year to meet the bonds falling due.

The plaintiff contends that the action of the town, in becoming an associate and in subscribing to the stock, was illegal; and therefore that the taxes of the said years levied to pay a part of such subscription were pro tanto illegal and invalid.

The statutes in force at the time when this action was taken authorized the town to subscribe to the stock of the corporation to a limited amount, by a vote of two thirds of the legal voters present and voting by ballot, at a legal meeting called for the purpose. St. 1870, c. 325, § 3. St. 1872, c. 53.

The record of the meeting of the defendant town of January 29, 1875, shows that the vote was by ballot, by using the check list, and "that said vote was passed by more than a two-thirds vote." The agreed facts show that the subscription by the town did not exceed the limit fixed by the statutes. The subscription by the town therefore was valid, unless there was some illegality in calling or conducting the meeting.

The warrant for the meeting contained the following articles:

"2d. To see if the town will vote to subscribe for and hold shares in the capital stock of the North Brookfield Railroad Company, a railroad corporation to be formed under chapter 53 of the acts of the year 1872 for the purpose of building a railroad from North Brookfield to East Brookfield.

"3d. To see if the town will vote to become an associate for the formation of the North Brookfield Railroad Company, a railroad corporation to be formed under chapter 53 of the acts of 1872 for the purpose of building a railroad from North Brookfield to East Brookfield, and act thereon.

"4th. To see what action the town will take in regard to raising money to aid in building a railroad from North Brookfield to East Brookfield, and act thereon."

The plaintiff objects that the town had no authority to become an associate for the formation of a railroad corporation under § 1 of the St. of 1872, c. 53. But this statute clearly contemplates that all the subscriptions to the stock are to be made by signing the articles of association....