Smith v. Town of Dedham

• Decision Date: 28 February 1887
• Parties: SMITH and others v. TOWN OF DEDHAM and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 177

10 N.E. 782

SMITH and others v. TOWN OF DEDHAM and another.

Supreme Judicial Court of Massachusetts, Norfolk.

February 28, 1887

COUNSEL

T.H. Talbot and E. Greenhood, for plaintiffs.

The plaintiffs maintain that the vote of August is in violation of Pub.St. c. 29. Where a town makes a contract, and nothing is left for it to do except to pay the money stipulated to be paid thereby at the times agreed upon, and the other party is the only one bound to do anything, and there is no power in the town to escape the liability created by the contract, if the other party performs his part, the town, by the contract creates or incurs a debt within the meaning of the chapter in dispute. Wallace v. Mayor of San Jose, 29 Cal. 180; Bladen v. Philadelphia, 60 Pa.St. 464; Newell v People, 7 N.Y. 9; French v. Burlington, 42 Iowa, 614; Wright v. Fairfield, 2 Barn. & Adol. 727. A debt may be contracted, although its amount is not ascertained at the time of such contracting. Reg. v Stepney, L.R. 9 Q.B. 383. It need not, at the time of contracting, be ascertained that anything will ever be due under it. A debt may be contracted under a contingency. Cox v. Gould, 4 Blatchf 341, 346. See Camp v Grant, 21 Conn. 54; Rodman v. Munson, 13 Barb. 63; Newell v. People, supra; Baltimore v. Gill, 31 Md. 375; Davenport Gas Co. v. Davenport, 13 Iowa, 229, 233. A debt is created when one person binds himself to pay money to another. "A party becomes indebted when he enters into an obligation to pay." Scott v. Davenport, 34 Iowa, 208, 213; Wilson v. Morgan, 4 Rob. (N.Y.) 58, 68; Lewis v. New York Cent. R.R., 49 Barb. 330. The term "indebtedness" or "debt" is of wide meaning. "The liability for a breach of a contract to furnish goods was held to be a 'debt' within the meaning of the stockholders' liability acts." Mill-dam Foundry v. Hovey, 21 Pick. 417, 456; Perry v. Washburn, 20 Cal. 318, 351; Stanton v. Wilkeson, 8 Ben. 365; Dryden v. Kellogg, 2 Mo.App. 94; Wilson v. Morgan, 4 Rob. (N.Y.) 58, 68; Kimpton v. Bronson, 45 Barb. 618, 625; Jonas v. Cincinnati, 18 Ohio, 318, 322; Garrison v. Chicago, 7 Biss. 488. See 2 Story, 432. Of what practical force and virtue will be the provisions of the statutes relating to municipal indebtedness if they be construed to be wholly inapplicable to long contracts,--contracts calling for a long series of annual payments, however large?

The court has jurisdiction. As this case has thus far been presented, there is no question of the jurisdiction of this court. If the action of the defendant town is in violation of Pub.St. c. 29, that chapter has undoubtedly provided a remedy; and the remedy provided is the mode of proceeding now followed by the plaintiff. See Pub.St. c. 29, § 17. But this court has a jurisdiction, in cases like the present, beyond that conferred by Pub.St. c. 29, § 17. See chapter 27,§ 129. The action of the town of Dedham, as shown by the bill and answer, is sufficient to raise jurisdiction under this section. See Babbitt v. Savoy, 3 Cush. 531. The vote of August, taken in connection with that of April, being a vote to pay money under the contract which it authorized, this court undoubtedly has jurisdiction to inquire into the legality of that contract, to-wit, the purpose declared in August. Further, the vote of August, by itself, is sufficient to give the court jurisdiction, as a vote "to raise by taxation," "or to pay from its treasury," money, since the passage of Acts 1877, § 1, c. 178. Crampton v. Zabriskie, 101 U.S. 601, 603. The vote of August is in violation of section 27, c. 27, as well as of chapter 29 of the Public Statutes. See Allen v. Taunton, 19 Pick. 485, (488, 489.) See Acts 1870, c. 93; Acts 1873, c. 255; Pub.St. c. 27, § 27. The town should be enjoined from entering into this contract because it would be void for want of authority in the other party to make it, and in violation of the charter which brought it into being. Haverhill v. Gale, 103 Mass. 104; McGregor v. Dover, etc., R. Co., 7 Eng.Ry.Cas. 227, 18 Q.B. 618; East Anglian R. Co. v. Eastern C.R. Co., 7 Eng.Ry.Cas. 150, 16 Jur. 249. If, then, the action of the defendant be in violation either of chapter 29 or 27, the jurisdiction of this court to give the relief prayed for by the bill is clear.

The contract contemplated is void as in excess of the powers of the town to appropriate money, and make contracts binding it to pay money, because the town is by law entitled to have without compensation that which it would bind itself to pay for. See Acts 1682, c. 28, § 6; Acts 1785, c. 75; Rev.St. c. 15, § 12; Gen.St. c. 18, § 10; Pub.St. c. 27, § 10; Hood v. Lynn, 1 Allen, 103, 104; Stetson v. Kempton, 13 Mass. 272, 281; Bangs v. Snow, 1 Mass. 190; Allen v. Taunton, 19 Pick. 486; Spaulding v. Lowell, 23 Pick. 76; Minot v. West Roxbury, 112 Mass. 1, 6. "Necessary charges can only intend such expenses as towns are liable by law to pay,--not such as they voluntarily incur." Stetson v. Kempton, 13 Mass. 273; Willard v. Newburyport, 12 Pick. 227. An expenditure is not a "necessary charge" when the law has provided a means of supply without expense to the town. Parsons v. Goshen, 11 Pick. 396, and Spaulding v. Lowell, 23 Pick. 77. See Acts 1798, c. 59, § 11; Rev.St. c. 40, § 15; Gen.St. c. 65, § 14; Pub.St. c. 110, § 15. See Acts 1867, c. 158. See Acts 1876, c. 138; Gen.St. c. 65; Pub.St. c. 110, §§ 15-17.

The contract contemplated would be void as against public policy. Tappan v. Brown, 9 Wend. 175; Tilden v. Mayor, etc., 56 Barb. 340; Placket v. Gresham, 3 Salk. 75; Putnam v. Woodbury, 68 Me. 58; Carroll v. Tyler, 2 Har. & G. 54, 57; Kernion v. Hills, 1 La.Ann. 419.

G.F. Williams, for defendants.

The complainants contend (1) that, as the contract proposed is for a term of 10 years, the vote should have been passed by two-thirds of the voters present and voting thereon; (2) that the check-list should have been used in taking the vote; (3) that the town has the right to use the water of the Dedham Water Company without payment, by connecting its hydrants with the company's pipes.

The cause presented does not show a cause within the jurisdiction of the court. The case falls short of the restraining power conferred by Pub.St. c. 27, § 129; Carlton v. Salem, 103 Mass. 141; Mead v. Acton, 139 Mass. 341, 1 N.E. 413.

The town of Dedham does not, by the vote of August 30, 1886 incur a debt within the import and fair construction of that term in Pub.St. c. 29, § 7. It is an ordinary function of a town to maintain a fire department, and furnish a supply of water to extinguish fire. Allen v. Taunton, 19 Pick. 485; Hardy v. Waltham, 3 Metc. 163; Fisher v. Boston, 104 Mass. 93. The ordinary powers and duties of towns may be exercised by ordinary votes. The legislature did not intend to cripple towns in the exercise of their powers. The statute under construction is a statute to limit extravagance. The contract proposed does not create a debt. Laycock v. Baton Rouge, 35 La.Ann. 475, 480; Dively v. Cedar Falls, 27 Iowa, 233; Grant v. Davenport, 36 Iowa, 396. Pub.St. c. 27,§ 27, has no application in this case. The town does not propose to supply its inhabitants with water. That is an extraordinary power of a town, and is to be exercised in a particular way. The vote in question provides only for the supply of water for public purposes. The town does not go into the water business to buy and sell, and make gains and losses. If the general aqueduct company law applies to the Dedham Water Company, and the town has the right to connect its hydrants with the pipes of the water company, it would seem to be sufficient for the purposes of this case that the town has no hydrants, and elects to purchase water, rather than to take it in a doubtful and expensive manner. The power of towns to raise money, and to enter into contracts obligatory on them, has ever been held to include all subjects of general interests which could be reasonably embraced within their statutory powers. Records of Colony of Massachusetts Bay in New England, 172; St.1785, c. 75,§ 7; Allen v. Taunton, 19 Pick. 485, 487; Hill v. Boston, 122 Mass. 344, 349; Agawam Bank v. South Hadley, 128 Mass. 503. Acts 1875, c. 209, should not be construed to take away this power as ordinarily exercised, unless a "debt" is thereby incurred. The vote of the town authorizing a contract is purely executory, (Copeland v. Huntington, 99 Mass. 525;) and, unless no contract can be made which will not interfere with the limitations of Acts 1875, c. 209, this court should not interpose its prohibition. If a contract be made for 10 years, at a rate of $4,500 a year, if the water company shall furnish water each year for legitimate needs of the town, no debt will be created. No obligation imposed by a contract to pay money becomes a debt until money is payable. Weston v. Syracuse, 17 N.Y. 110; Garrison v. Howe, Id. 458. Such a contract would consist of dependent promises, of which the performance would be severable and divisible, and no debt would be created. Willington v. West Boylston, 4 Pick. 101; Badger v. Titcomb, 15 Pick. 409; Knight v. New England Worsted Co., 2 Cush. 271, 290; Oviatt v. Hughes, 41 Barb. 541. Nothing would be payable except upon a contingency; and an obligation depending upon a contingency does not create a debt. People v. Arguello, 37 Cal. 524; Wood v. Partridge, 11 Mass. 488, 493. It has been so held in this state in cases arising under the trustee process, ( Wentworth v. Whittemore, 1 Mass. 471, 473; Thorndike v. De Wolf, 6 Pick. 120; Meacham v. McCorbitt, 2 Metc. 352;) also in cases involving liability of stockholders and officers for corporate debts, ( Bordman v. Osborn, 23 Pick. 295.) So under insolvent laws, where the term "debts" is used in its broadest sense, and in other cases....