Larcom v. Olin

• Decision Date: 10 November 1893
• Citation: 35 N.E. 113,160 Mass. 102
• Parties: LARCOM et al. v. OLIN, Secretary of State, et al., (two cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 102

35 N.E. 113

LARCOM et al. v. OLIN, Secretary of State, et al., (two cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

November 10, 1893

COUNSEL

E.T. Burley, for petitioners.

A Hemenway, D.W. Quill, and R.W. Boyden, for respondents.

OPINION

FIELD C.J.

It has always been considered doubtful whether the constitution of this commonwealth, as originally adopted, authorized the general court to constitute city governments. It was partly for this reason that the constitutional convention of 1820 recommended the adoption of what is now article 2 of the amendments, and the authority of the general court in this respect must now be determined by the construction to be given to this amendment. Journal of Const.Conv.1820, pp. 57 125, 192-196, 404-409; Warren v. Mayor, etc., 2 Gray, 84-101; Hill v. Boston, 122 Mass. 344, 354 et seq.; Opinion of the Justices, 157 Mass. 595, 597, 35 N.E. 111.

The first question suggested is whether this amendment authorizes the general court to pass a general statute, under which a town in this commonwealth may become a city, provided such town contain 12,000 inhabitants. The city of Boston was the first city established, and, so far as we are aware, every town which has been made a city has been incorporated by a special act of the general court upon the application of the town; and the act, after it has been passed, has been accepted by the inhabitants of the town before it took effect as an act of incorporation. City charters, when once accepted, have often been amended by the general court without any application from the city, and without the consent of the inhabitants. General statutes for the organization of private corporations began to be enacted as early as the year 1798. See St.1797, c. 82; St.1805, c. 72; St.1806, c. 66; St.1824, c. 62; St.1828, c. 138; Rev.St. c. 41, § 7. The first general statute for the organization of business as corporations was St.1851, c. 133, and since that statute this method of organization has been extended to nearly all kinds of business corporations. See Pub.St. c. 106, § 6 et seq. The statute of 1892, c. 377, is an attempt, and the first attempt, to apply this principle to the establishment of city governments. If this statute is valid, then any town containing not less than 12,000 inhabitants may become a city by holding a meeting pursuant to the first section of the statute, if a majority of the inhabitants present and voting at the meeting vote to "apply for and consent to a city government." The form of the city government is prescribed by the statute, except that the inhabitants may also vote upon three propositions, called the "second, third, and fourth propositions," in substance, as follows: Shall the city council be composed of two boards, or one? Shall the aldermen, if there be a board of aldermen, be elected for two years, or for one year? Shall the mayor be elected for two years or for one? If there is an equal number of votes, or a failure to vote upon any of these three propositions, then the proposition is held to have been answered in the affirmative; that is, in favor of a city council composed of two boards, and in favor of an election for two years of the mayor and aldermen. The selectmen of the town are required to make a return of the votes cast at this meeting to the secretary of the commonwealth, and if it appears to him that a majority of the voters of the town present and voting have voted to apply for and consent to a city government, then it becomes his duty to cause "a copy of the provisions of the articles of government, in the form in which they have been consented to by vote of the town in response to the second, third and fourth propositions, supplying therein the name of the town in the proper blanks, to be properly engrossed and attested and delivered to the town clerk of said town. The articles of government as so consented to and attested shall constitute the powers, privileges and immunities to be in force and effect for the government of said town, to the extent and in the manner in said articles set forth." Section 2, Id. The articles of government, when so attested and delivered, constitute the charter of the city, and they are to be printed with the acts and resolves of the general court of the next succeeding year. The effect of the statute is that the general court exercises no discretion in the establishment of city governments under the statute, except in prescribing by a general law the articles of government. If a majority of the inhabitants present and voting at a meeting duly called pursuant to the first section vote to apply for a city government under the statute, the town becomes a city, without any further act of the general court, or of the inhabitants.

The question most argued in the present cases is how it is to be ascertained whether the town of Beverly contained 12,000 inhabitants on September 7, 1893, when a majority of the inhabitants present and voting at a meeting held on that day voted to apply for a city government under the statute. The town, by the census of the United States of the year 1890, or by the state census of the year 1885, or by any earlier United States or state census, was not found to contain as many as 12,000 inhabitants. The inhabitants of the town, at a meeting held on March 6, 1893, appointed a committee to take a census, and that committee reported at a meeting held on August 24, 1893, that the number of the inhabitants was 13,111; and the town accepted the report, and requested the selectmen to call the meeting which was held on September 7, 1893, when a majority of the voters present voted to apply for a city government. The correctness of this census is denied by the petitioners in these cases, who offered evidence tending to prove that the enumeration was false, and that it was made with the fraudulent purpose of inducing the voters of the town to vote for a city government under the belief that the town had 12,000 inhabitants, when in fact it did not have so many. The presiding justice reported the cases without trying this issue.

The census taken was unauthorized by any law, unless the statute of 1892, c. 377, impliedly authorized a town to take such a census. One contention of the respondents is that the statute impliedly authorizes a town to ascertain the number of its inhabitants in any reasonable manner, and that the plan adopted by the town of Beverly is a reasonable method, and that this enumeration is conclusive, particularly as the secretary of the commonwealth, in his answer to the plaintiffs' petitions, says that "he is satisfied that said town of Beverly is, and was upon the 7th day of September, 1893, a town containing 12,000 inhabitants." In reply, it is said that the general court cannot delegate to the secretary of the commonwealth the power to find a fact which is a condition precedent to the establishment of a city government; that it has not attempted to do so; that it has not authorized a town to take a census for itself; and that unless the correctness of the census taken can be tried by the court, the statute is ineffectual, because it is incomplete. In framing the statute of 1892, c. 377, it is plain that the general court intended to comply with article 2 of the amendments of the constitution. The proviso of that amendment is "that no such government shall be erected or constituted in any town not containing 12,000 inhabitants, nor unless it be with the consent and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose." The brief of the respondents contains a reference to several cities which the general court has incorporated, which did not contain 12,000 inhabitants, according to the state or national census next preceding the act of incorporation. In such cases the general court must have been convinced by the report of committees, or in some other manner, that the town which they were incorporating into a city had acquired the requisite number of inhabitants since the last census. This practice of the general court was introduced to show that it has never felt that the enumeration of the last preceding census, whether...