Prince v. Crocker
| Decision Date | 15 June 1896 |
| Citation | 44 N.E. 446,166 Mass. 347 |
| Parties | PRINCE et al. v. CROCKER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F.A. Brooks and John D. Bryant, for complainants.
Solomon Lincoln, for the Boston Transit Commission.
The general complaint of the plaintiffs, as stated in their bill is that, if the transit commissioners are permitted to proceed in the execution of the enterprise committed to them by St.1894, c. 548, they will involve the city of Boston in an indebtedness or liability of many millions of dollars beyond the limit of indebtedness prescribed by the laws of the commonwealth, and will do this without the authority of the city council or the consent of the taxpaying citizens and also that this statute would have the effect to deprive the city of many rights and privileges belonging to its inhabitants, and especially that it would infringe rights which relate to the control of the streets and highways of the city by the aldermen and street commissioners; all in violation of the right of the inhabitants of the city to govern themselves.
It is provided by section 40 of the statute that the transit commission shall not "take any land or commence the construction of any subway or tunnel until this act shall be accepted by a majority of the voters of said city voting at some special election called by the mayor," etc. In the printed copy of the subway legislation furnished to us by mutual consent of counsel it is stated that this act was accepted at a special election held July 24, 1894. There is no averment in the bill that no such vote of acceptance had been passed, and, though the briefs on both sides say little or nothing on this point, yet it is implied in the briefs furnished by one of the counsel for the plaintiffs (Mr Bryant) that there had been such an acceptance, and it is then contended that the people at the polls are not the tribunal to determine what debts shall be incurred by or in behalf of the city, because, by a law which stands unrepealed, that question is to be determined by both branches of the city government, and a two-thirds vote of each branch is required to authorize the incurring of a debt by the city. As the fact of the acceptance of the statute has significance in certain aspects of the questions presented, we will state at the outset that, in the absence of any averment to the contrary, we assume that such a vote of acceptance was duly passed. This is a fact of which the court should take judicial notice. Andrews v. Knox Co., 70 Ill. 65; State v. Swift, 69 Ind. 505; Rauch v. Com., 78 Pa.St. 490. Moreover, it is very doubtful, to say the least, whether the plaintiffs, as taxpaying inhabitants, have any standing to maintain the bill in their own names, except upon the assumption that the vote to accept the statute is virtually a vote to raise or to pay money, within the meaning of Pub.St. c. 27, § 129. In this commonwealth, contrary to what has been held in some other jurisdictions, a suit like the present has been considered not to fall within the general jurisdiction of a court of equity. Baldwin v. Wilbraham, 140 Mass. 459, 4 N.E. 829; Steele v. Signal Co., 160 Mass. 36, 35 N.E. 105; Carlton v. City of Salem, 103 Mass. 141. By Pub.St. c. 27, § 129, 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, it may be restrained by this court upon the suit or petition of not less than 10 taxable inhabitants. The case of Frost v. Belmont, 6 Allen, 152, was brought under St.1847, c. 37, which was like Pub.St. c. 27, § 129. The case of Lowell v. City of Boston, 111 Mass. 454, was also brought under the similar provision found in Gen.St. c. 18, § 79. No point was there made that under the statute the petitioners had no right to be heard.
It is contended, however, by the present defendants that the plaintiffs have no standing to maintain this bill, but in favor of affording a remedy against a use of public money which is supposed to be illegal we think a somewhat liberal construction should be given, and that the vote to accept the statute is sufficient to give the plaintiffs a standing in court under Pub.St. c. 27, § 129.
The two principal grounds upon which the plaintiffs contend that St.1894, c. 548, as a whole, is invalid, are that it imposes a heavy debt upon the city, and to a certain extent takes away from the city the control of its streets. The plaintiffs deny the power of the legislature to do either of these things without the authority of the city council, or the consent of the taxpaying citizens of the city. It has, however, been established by a great weight of usage and authority that the legislature may impose such a duty and burden upon towns and cities without their own consent. We do not deem it necessary to go into an extended discussion of this subject, or to consider what objects may be so special or local in their character as not to come within the general rule. As to roads of all kinds and bridges and sewers the doctrine is well established in this commonwealth and elsewhere that the legislature may prescribe what shall be done, and require cities and towns to bear the expense to such an extent and in such proportions as it may determine. The powers which had been given to cities and towns by the legislature by special or by general laws are in no sense a contract, and do not become vested rights as against the legislature. Coolidge v. Brookline, 114 Mass. 592, 596, 597; Inhabitants of Agawam v. Hampden Co., 130 Mass. 528, 530; In re Kingman, 153 Mass. 566, 573, 576, 27 N.E. 778; People v. Morris, 13 Wend. 325; Sloan v. State, 8 Blackf. 361; People v. Flagg, 46 N.Y. 401; City of Philadelphia v. Field, 58 Pa.St. 320; Pumphrey v. Mayor, etc., of Baltimore, 47 Md. 145; Dill. Mun. Corp. (4th Ed.) §§ 54, 73, 74, 831, and other cases there cited. If this power were otherwise doubtful, in the present case the statute under consideration is not peremptory and absolute, but it remained inoperative until accepted by a majority of the voters of the city. The plaintiffs contend that the statute is to become operative without the authority of the city council or the consent of the taxpaying citizens; but, if a consent were necessary, we know of no authority or legal reason for requiring any other consent than that of qualified voters. In Merrick v. Amherst, 12 Allen, 500, 506, the court, while intimating that no consent at all was necessary, said: "To guard against all danger of mistake, and to obtain the highest evidence from those most interested that the imposition of the tax was not unequal or disproportionate to the expected benefits, the legislature required that it should be laid on the inhabitants of the town unless two-thirds of the voters at a meeting to be called for the purpose should assent to its imposition." The instances where legislatures have provided that towns or cities or counties might or should bear the whole or a portion of the expense of local improvements in case the qualified voters should assent, and not otherwise, are numberless. In our own statutes, from early times, such legislation has been common. In the Public Statutes now in force many instances are found enacting that cities and towns may by vote accept the provisions of certain statutes, and thereupon shall be subject to certain duties and burdens. There have been many special laws to the same effect. It cannot be necessary to cite more than a few illustrative instances; Pub.St. c. 27, §§ 10-13, 27, 29, 44, 65, 69, 74; Id. c. 28, §§ 3, 22, 23; Id. c. 35, § 4; Id. c. 45, §§ 44, 52; Id. c. 50, §§ 20, 22, 25; Id. c. 51, § 10; Id. c. 80, §§ 8-13. By the second amendment to the constitution, city governments cannot be established except with the consent and on the application of a majority of the inhabitants of the town present and voting thereon at a meeting. All of the cities of the commonwealth have been incorporated under this amendment. Larcom v. Olin, 160 Mass. 102, 104, 108, 35 N.E. 113. When the legislature imposes such a condition in order to bind a city or town or county to assume a particular burden, it must be complied with; but an assent by vote will give full effect to the statute, and the city, town, or county will thereupon become bound. Hampshire v. Franklin, 16 Mass. 76, 87, 90; Stone v. Charlestown, 114 Mass. 214; Central Bridge Corp. v. City of Lowell, 15 Gray, 106, 116; St. Joseph Tp. v. Rogers, 16 Wall. 644, 662, 663; Board v. Aspinwall, 21 How. 539; Dill. Mun. Corp. §§ 519, 526, 544, 551-553, and cases there cited. It is not material that the work is not put in charge of the street commissioners of the city. The legislature might provide for doing the work at the expense of the city, but through other agents than those regularly appointed by the city; it might impose liability on the city, incur the expense, and require payment by the city. The acceptance of the act by the city precludes objection on this score, even if such objection would otherwise have been open.
The foregoing considerations apply to the bridge over Charles river, provided for in section 30, as well as to the subway itself.
It is further contended that taxation can only be for a public use that the term "public use," in reference to taxation, has a more restricted meaning than when applied to the taking of land by eminent domain; that the subway will not be a highway, or open and free to be used by the public for driving or walking; that, when finished, the statute authorizes the transit commission virtually to grant a lease of it to any street-railway company for 50 years; and that the use of the subway which is contemplated is not a public use. Th...
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