Tuckerman v. Moynihan

• Decision Date: 04 April 1933
• Citation: 185 N.E. 2,282 Mass. 562
• Parties: TUCKERMAN et al. v. MOYNIHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 562

185 N.E. 2

TUCKERMAN et al.

v.MOYNIHAN.

Supreme Judicial Court of Massachusetts, Essex.

April 4, 1933.

Report from Supreme Judicial Court, Essex County.

Petition by Bayard Tuckerman, Jr., and others for writ of mandamus to compel Francis C. Moynihan, as surveyor of highways, to put into effect three votes of the town of Hamilton. On report.

Petition dismissed.E. E. Crawshaw and G. H. Schofield, both of Newburyport, for petitioners.

A. A. Schaefer, R. B. Walsh, and J. T. Mountz, all of Boston, for respondents.

WAIT, Justice.

At its annual town meeting in March, 1932, the town of Hamilton passed three votes: (1) ‘That the Surveyor of Highways be hereby instructed that all work on highways, including Snow Removal, where trucks are required, be let to the lowest bidder after sealed proposals have been received in response to suitable advertising in the Salem Evening News, work under this motion to start not later than April 1, 1932, and further, that said contract be approved by the Board of Selectmen; that the bidders on work on highways, including Snow Removal be limited to the Town of Hamilton’; (2) ‘That the Town authorize and instruct the surveyor of Highways to discontinue the use of the Mack Truck on all Town work and that said Mack Truck be returned to the owner, the Commonwealth of Massachusetts, not later than April 1, 1932’; (3) ‘That the Town authorize and instruct the Surveyor of Highways to discontinue the use of the Ford dump truck, now attached to the highway department, and that said Ford dump truck be disposed of sale to the highest bidder not later than April 1, 1932.’ This action was taken under an article in the warrant for the meeting, which read: ‘To raise and appropriate money for Schools, Highways and all town expenses and determine the manner of expending same.’ The last clause of (1) was added on an amendment offered by the respondent Moynihan. He later at the meeting was elected surveyor of highways. He has accepted the position; but has absolutely disregarded the votes, believing them to be invalid. In this belief the selectmen share. Twelve taxpayers in Hamilton file this petition for mandamus to compel him to put the votes into effect. He admits the facts alleged: that the Mack truck is the property of the Commonwealth; that the Ford dump truck belongs to the town; and that both have been in use in work in repairs upon the highways of the town after April 1, 1932. He contends that the votes are invalid because not within the scope of the article of the warrant; are inoperative because as highway surveyor of Hamilton he is not bound by them; and because they are in violation of G. L. (Ter. Ed.) c. 41, § 62, which provides that ‘if a highway surveyor be chosen, he shall have the exclusive control of the ordinary repair of public ways in his town without being subject to the authority of the selectmen;’ and, lastly, in part at least, are unenforceable in this proceeding because mandamus is an improper remedy.

G. L. (Ter. Ed.) c. 39, § 10, requires that the warrant for a town meeting shall state ‘the subjects to be acted upon thereat’; and enjoins that ‘no action shall be valid unless the subject matter thereof is contained in the warrant. From early times a broad interpretation has been given this language. It has been held to be complied with if the warrant indicates ‘with substantial certainty the nature of the business to be acted on.’ Coffin v. Lawrence, 143 Mass. 110, 112, 9 N. E. 6, 8. ‘The articles * * * are the mere abstracts or heads of the propositions which are to be laid before the inhabitants for their action: and matters incidental to and connected with such propositions are alike proper for their consideration and action.’ Haven v. City of Lowell, 5 Metc. 35, 40, 41. Matters of which they give substantial and intelligent notice may properly be dealt with under them. In Haven v. City of Lowell this court, in holding an article sufficient, took into account circumstances well known in the vicinity. No such strictness is to be used in construing articles which deal with matters generally acted upon by towns as is required in an article relating to modification of a zoning ordinance under G. L. (Ter. Ed.) c. 40, § 30, and the decision in Nelson v. Town of Belmont, 274 Mass. 35, 174 N. E. 320. The voters of Hamilton were notified that the matter of the expenditure for highways would be taken up. This involved not only the amount to be spent, but the methods of raising the money and the manner in which it was to be spent. Whether apparatus owned or possessed by the town should be utilized or should be disposed of was fairly incidental to a decision of the expenditure. So, too, the requirement that certain expense should be incurred only after sealed bids had been obtained was reasonably incidental to the subject matter-expenditure on the highways. The details in regard to place of publication and approval by the selectmen have close connection with the business acted upon. It cannot properly be held that the subject matter of the votes was not contained in the warrant.

Our statutes authorize a town to ‘make contracts for the exercise of its corporate powers' (G. L. [Ter. Ed.] c. 40, § 4); to appropriate money ‘for laying out, discontinuing, making, altering and repairing public ways, and for materials used and labor employed thereon’ (chapter 40, § 5(4); to hold personal property, to ‘make such orders as it may deem necessary or expedient for the disposal or use of its corporate property,’ and to place it in the charge of any particular board, officer or department (chapter 40, § 3); to ‘authorize their surveyors or road commissioners or any other person to enter into contracts for making or repairing the ways therein’ (chapter 84, § 7). They require that ‘highways and town ways shall, unless otherwise provided, be kept in repair at the expense of the town in which they are situated’ (chapter 84, § 1); and they impose the duty of seeing that the ways are so kept in repair upon surveyors of highways, or upon road commissioners where the latter officials are chosen (chapter 84, § 7). They require the election of one or the other official (chapter 41, § 1). They define the sphere of duty of a highway surveyor (chapter 41, § 62) as follows: ‘If a highway surveyor be chosen, he shall have the exclusive control of the ordinary repair of public ways in his town without being subject to the authority of the selectmen. If more than one highway surveyor be chosen, the selectmen shall annually, before May first, assign to each surveyor the limits and divisions of the ways to be kept in repair by him.’ They point out what he must do in chapter 84, § 7: ‘Surveyors of highways and road commissioners shall remove whatever obstructs the public ways within their respective towns or districts, or endangers, hinders or incommodes persons traveling thereon; and shall forthwith cause snow to be removed or trodden down so as to make such ways reasonably safe and convenient. If a town neglects to vote a sufficient amount for the proper repair of ways therein, or does not otherwise effectually provide therefor, each surveyor in his district, or the road commissioners, may employ persons to make such repairs, who shall be paid by the town; and towns may authorize their surveyors or road commissioners or any other person to enter into contracts for making or repairing the ways therein.’ These statutes make the town responsible for the expense of repairing its ways; but they place the burden of seeing that the work is done upon surveyors of highways who in performing this duty are not the agents of the town, but are public officials. White v. Inhabitants of Phillipston, 10 Metc. 108;Pratt v. Weymouth, 147 Mass. 245, 254, 255, 17 N. E. 538,9 Am. St. Rep....