Whiting v. Mayor of Holyoke

• Decision Date: 03 July 1930
• Citation: 172 N.E. 338,272 Mass. 116
• Parties: WHITING et al. v. MAYOR OF HOLYOKE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 116

172 N.E. 338

WHITING et al.

v.MAYOR OF HOLYOKE et al.

Supreme Judicial Court of Massachusetts, Hampden.

July 3, 1930.

Report from Superior Court, Hampden County; Frederic B. Greenhalge, Judge.

Suit by Sidney E. Whiting and others against mayor of Holyoke and others. Case reported to Supreme Judicial Court on interlocutory decree sustaining demurrer to bill.

Decree in accordance with opinion.

William H. Brooks, William T. Dillon, Hugh J. Lacey, and Cornelius J. Moriarty, all of Holyoke, for petitioners.

J. Ogan, City Solicitor, and C. E. Ducharme, both of Holyoke, for defendants.

RUGG, C. J.

This is a bill in equity by ten taxpayers of Holyoke to restrain the mayor and other city officials from incurring obligations and expending money of the city for purposes alleged to be contrary to law. The case was heard upon bill and demurrer. An interlocutory decree was entered sustaining the demurrer, and reported for determination by this court. Summarily stated, the material allegations of the bill are these: The gas and electric department of Holyoke was established and is maintained and regulated by the relevant provisions of G. L. c. 164 and by St. 1922, c. 173. By the latter chapter an unpaid commission of three is vested with all the powers and duties theretofore exercised by the mayor under G. L. c. 164 and in addition with the powers and duties conferred upon municipal light boards in towns by said chapter 164. The affairs, doing and conduct of the gas and electric department are under the law subject to examination and audit by the city auditor, by the director of accounts of the Commonwealth,and by the department of public utilities of the Commonwealth. In June, 1927, the board of aldermen of Holyoke passed an order, approved by the mayor, providing for a committed of five of its members who in conjunction with the mayor were directed to ‘conduct a general investigation of the conduct and doings' of the gas and electric department, ‘particularly as same relates to the question of economy of administration of the business' of the department. In paragraph 5 of the bill it is alleged that ‘No irregularities or defaults or errors in economy of administration or of the conduct, doings of affairs' of the gas and electric department ‘have been disclosed by the examinations or audits of the officers or agencies authorized by law to exercise supervision over’ such department, and that no allegations of that nature have been presented to ‘the Board of Aldermen to show the necessity or reasonableness of the proposed investigation, and such an investigation would be * * * unnecessary and futile.’ In April, 1929, the board of aldermen passed an order, approved by the mayor, appropriating ten thousand dollars to be used under the supervision of the mayor for ‘defraying the expenses of an investigation of the affairs, financial or otherwise’ of the gas and electric department. ‘So much of said sum as shall be necessary shall be used by him to employ the services of auditors, accountants, or other experts, and to defray other expenses incidental to such investigation.

For the purposes of this decision the facts thus alleged must be taken as true.

The cities and towns of this Commonwealth have no inherent but only a delegated power to raise and expend money. Their rights in this particular rest upon legislative grant; if the authority is not found in express terms or by necessary implication in some act of the General Court, it does not exist. The numerous authorities to this effect need not be collected. It is the doctrine of the early, the late, and many intervening decisions, Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145;Attorney General v. Lowell, 246 Mass. 312, 320, 141 N. E. 45, and cases cited.

The right to erect, maintain and operate gas and electricplants is not one of the general powers conferred by implication of law upon municipalities in this Commonwealth. Opinion of the Justices, 150 Mass. 592,23 N. E. 850,6 L. R. A. 842;Spaulding v. Peabody, 153 Mass. 129, 26 N. E. 421,10 L. R. A. 397. Therefore the statutes by which that power has been conferred must be examined to determine whether the expenditure here in question is authorized. According to the allegations of the bill, the subject in Holyoke is governed by St. 1922, c. 173. It there is provided by section 1 that...