Prince v. City of Boston

• Decision Date: 03 January 1889
• Citation: 19 N.E. 218,148 Mass. 285
• Parties: PRINCE et al. v. CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 285

19 N.E. 218

PRINCE et al. v. CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1889

COUNSEL

Sidney Bartlett and R.D. Weston-Smith, for plaintiffs.

W.G Russell and George Putnam, for defendants.

OPINION

MORTON C.J.

An interesting question of jurisdiction lies at the threshold of this case. The suit is brought under Pub.St. c. 27, § 129 which provides that "when a town votes to raise by taxation or pledge of its credit, or to pay from its treasury, any money for a purpose other than those for which it has the legal right and power, the supreme judicial court may, upon the suit or petition of not less than 10 taxable inhabitants thereof, briefly setting forth the cause of complaint, hear and determine the same in equity." The relief sought is that the city of Boston should be enjoined from raising or appropriating any money for the purpose of paying the salaries and expenses of the board of police appointed by the governor under the statute of 1885, c. 323. The ground upon which the plaintiffs seek to maintain their bill is that the statute of 1885 is unconstitutional, and therefore such payments are for an illegal purpose, within the twenty-seventh chapter of the Public Statutes.

The statute under which these proceedings are brought was first enacted in 1847. Numerous cases have arisen under it, but this is the first instance in which it has been attempted to use it for the purpose of trying the title to office of one who is exercising the functions and performing the duties of a public office under an appointment by the governor, acting under the authority of the legislature. As a general rule the title to such an office cannot be assailed collaterally; if he is holding without right, the remedy is by an information in the nature of a quo warranto. Under such an information the title to the office can be fully tried and conclusively settled. But the statute in question is not adapted for such a purpose. Ordinarily the person holding the office which is assailed is not a party to a suit under the statute, and if, as was done by amendment in the case at bar, he is made a nominal party, no decree or judgment can be rendered against him. No judgment of ouster could be rendered, but after a decree in favor of the petitioners he would continue still to hold the office. The case at bar, we think, presents a strong illustration of the wisdom of the rule that the title to a public office cannot be collaterally impeached. If we should enter a decree in favor of the plaintiffs, it could not remove the board of police. They would still retain their offices, and thus would be produced confusion and a conflict of authority between them and the old commissioners of police, or the mayor and aldermen, and probably disorganization and disorder in the police department, upon which the peace of the city largely depends. All difficulties will be obviated by trying the title to the office in the proper way by information in the nature of quo warranto, the result of which would finally adjudicate and settle the rights of all parties.

We are of opinion that it was not the intention of the legislature ...