Seward v. Revere Water Co.
| Decision Date | 12 March 1909 |
| Citation | 201 Mass. 453,87 N.E. 749 |
| Parties | SEWARD et al. v. REVERE WATER CO. et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A P. French, Roscoe Ralsworth, and E. A. Howes, Jr., for appellants.
A. E Pillsbury and G. M. Palmer, for respondents.
Irrespective of whether the demurrer could be sustained upon the ground of unreasonable delay in availing themselves of the statutory remedy, the bill fails to state a case for equitable relief. The petitioners, while seeking to prevent an unlawful expenditure of the public funds, do not represent other taxpayers, nor are they authorized to act for the town. If by reason of alleged misrepresentations or constructive fraud on the part of the company, or of its officers or agents while lawfully acting for it, a right of rescission exists, it can be exercised, if at all, only by the town which was the other party to a bilateral contract. Dill v. Wareham, 7 Metc. 438, 445; Minot v. West Roxbury, 112 Mass. 1, 3, 17 Am. Rep. 52. We are not therefore called upon to decide whether the town can rescind as under the several statutes conferring authority to purchase, the contract was within its powers. The petitioners, however, urge that the contract was not merely voidable, but absolutely void, and no valid debt having been contracted, the appropriation of money raised by taxation for its payment is illegal and should be enjoined. But the various grounds upon which they rest this contention are unsupported by the allegations of the bill. If the moderator at three of the meetings, by whom, upon a vote authorizing him to make the appointments, important committees were nominated to consider and report upon the proposed purchase, was also an officer of the company, no charge is made that he acted corruptly at the instigation and for the benefit of this respondent, and the mere fact that he was the company's employé did not debar him from exercising his rights as a citizen and voter, or prevent the town from availing itself of his services. Revere Water Co. v. Winthrop, 192 Mass. 455, 458, 78 N.E. 497, and cases cited. See, also, Sylvester v. Webb, 179 Mass. 236, 240, 60 N.E. 495, 52 L. R. A. 518.
By St 1882, p. 103, c. 142, § 7, the town was authorized to buy, and all the proceedings, including the agreement with the company, seem to have been in accordance with its provisions. If there had been any doubt as to the regularity of the meetings, and the action taken, it was within the power of the town to vote 'to ratify and adopt' the contract, which it did at the adjourned meeting of May 3, 1904, and as it does not appear that the limit of its municipal indebtedness would have been thereby exceeded, to issue its bonds in payment. Arlington v. Peirce, 122 Mass. 270; Braintree Water Supply Co. v. Braintree, 146 Mass. 482, 16 N.E. 420; Rev. Laws, c. 27, § 9. In the meantime St. 1904, p. 469, c. 457, had been obtained, authorizing the town 'by purchase or otherwise' to establish a water system if the act was accepted by two-thirds of the voters present, and voting at a meeting duly called for the purpose, and at which the check list should be used. St. 1904, p. 473, c. 457,§ 12. The language of the act is plain, and the argument of the petitioners, that two-thirds of all the voters of the town is meant, calls for no further comment. At a meeting duly warned, it was voted, under article 2, 'to proceed to ballot as required by section 12 of chapter 457, Acts of 1904, the check list to be used.' By a more than two-thirds vote the act was accepted,...
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