236 Mass. 564 | Mass. | 1921
This is an information in the nature of a quo warranta brought by the Attorney General “in behalf of the Commonwealth and at the relation of Charles W. Mann” against the city of Methuen seeking to have the city charter of Methuen declared void as having been enacted contrary to the requirements of art. 2 of the Amendments to the Constitution, and to have a judgment of ouster accordingly.
The question whether the Attorney General has power by. virtue of his office to bring an information in the nature of a
An information in the nature of a quo warranta may be brought by the Attorney General in behalf of the Commonwealth to test the question whether the franchises and prerogatives of a municipal corporation have been usurped. The municipality nominally and in fact exercising such franchises and prerogatives may be made the party defendant. That proposition rests upon sound principle. It is supported by the great weight of adjudications in other jurisdictions. State v. Bradford, 32 Vt. 50. Nelson v. Consolidated Independent School District of Troy Mills, 181 Iowa, 424. People v. Kingsland, 70 N. Y. 518. People v. Powell, 274 III. 222, 227. Evens v. Anderson, 132 Minn. 59, 62. Earlboro v. Howard, 47 Okla. 455. State v. Birmingham, 160 Ala. 196. State v. Clark, 75 Neb. 620. Brennan v. Bradshaw, 53 Texas, 330. State v. Osburn, 24 Nev. 187. Dakota v. Armstrong, 6 Dak. 226. Askew v. Manning, 38 U. C. (Q. B.) 345, 361. State v. Commissioners of Ford County, 12 Kans. 441. Henry v. Steele, 28 Ark. 455. Bateman v. Florida Commercial Co. 26 Fla. 423. Velasquez v. Zimmerman, 30 Col. 355. State v. Atlantic Highlands, 20 Vroom, 457. State v. Woods, 233 Mo. 357. State v. Leischer, 117 Wis. 475. Rex v. Corporation of
It becomes unnecessary to consider whether the circumstances are such that the relator would be barred of relief for any reason. Manifestly there is nothing on this record which prevents the Attorney General from asking the court to consider his contentions. Commonwealth v. Allen, 128 Mass. 308.
The constitutionality of Spec. St. 1917, c. 289, is assailed. The ground upon which that contention rests is that that statute was not enacted as required by the Constitution and hence that the exercise of the franchises of a city by the defendant is a usurpation. That statute in form provides that the inhabitants of the town of Methuen shall continue and become a body corporate and politic under the name of the city of Methuen, enjoying all the rights and powers and subject to all the duties and obligations of cities as municipal corporations. That act was submitted to the legal voters of the town "for their acceptance or rejection,” and was “accepted” by them by ballot as provided by § 54 of c. 289. Officers of the city were elected in December, 1917, and assumed the control of the municipal affairs of Methuen on the first Monday of January, 1918. Since that time its government has been in accordance with c. 289.
The only authority conferred by the Constitution to establish a city is found in art. 2 of the Amendments. It is in these words: “The General Court shall have full power and authority to erect and constitute municipal or city governments, in any corporate town or towns in this Commonwealth, and to grant to the inhabitants thereof such powers, privileges, and immunities, not repugnant to the Constitution, as the General Court shall deem necessary or expedient for the regulation and government thereof, and to prescribe the manner of calling and holding public meetings of the inhabitants, in wards or otherwise, for the election of officers under the Constitution, and the manner of returning the votes given at such meetings. Provided, that no such government shall be erected or constituted in any town not containing twelve thousand inhabitants, nor unless it be with the consent, and on the application of a majority of the inhabitants of such town,
These exact points have not hitherto been presented for determination. Their decision depends upon the meaning of art. 2 of the Amendments to the Constitution. That article was proposed and adopted because the Constitution as it stood theretofore required a town form of government "not adapted to the condition of a populous town,” and because it was deemed necessary “to authorize such an organization as is adapted to the condition of a numerous people.” Remarks of Lemuel Shaw, Journal of Mass. Convention, 1820-1821, page 98.
There are few decisions respecting art. 2 of the Amendments to the Constitution. It was said by Chief Justice Gray in Hill v. Boston, 122 Mass. 344, at page 357: “The Constitution does not indeed allow a city to be established in the first instance, so as to transfer the immediate control of local affairs from the whole body of citizens in town meeting to a delegated city council, except with the consent and on the application of a majority of the inhabitants.” Warren v. Mayor & Aldermen of Charlestown, 2 Gray, 84,101. In Larcom v. Olin, 160 Mass. 102, St. 1892, c. 377, which established a model form of city charter and provided for its adoption by vote of a town possessing other constitutional requisites for becoming a city without further action by the General Court, was held to be contrary to the terms of art. 2 of the Amendments. In the cotuse of the opinion, written by Chief Justice Field, it was said, at page 108: “The proviso was inserted in the proposed amendment that the voters in small towns might continue to hold their ancient privileges of managing their own town affairs. The limit was fixed at twelve thousand inhabitants, and it was also provided that, although the town contained twelve thousand inhabitants, the General Court should not constitute it a
The plain implication if not the express words of the opinion in Larcom v. Olin and the natural inference from the other decisions is that the Second Amendment requires that the first step toward a change from the town to the city form of government must be an application presented to the General Court in consequence of a preceding vote adopted by a majority of the inhabitants of the town present and voting in a meeting warned and held for that purpose.
Fair interpretation of the meaning of the amendment as disclosed both by its words and its history leads irresistibly to the
The first sentence of the Second Amendment, standing by itself alone, is a clear, unqualified, explicit grant of power to the General Court “to erect and constitute municipal or city governments.” If that sentence stood alone there could be no doubt of the authority of the General Court even to impose a city form of municipal government upon the inhabitants of a town against then-protest. But that sentence does not stand alone. It is followed by another sentence, the first word of which is, “Provided.” That word in common speech naturally expresses a qualification, a limitation, a condition, or an exception respecting the scope and operation of words previously used. Although a proviso in statutes, contracts or wills not infrequently introduces new or independent matter, its true office and its general purpose is to restrict the sense or make clear the meaning of that which has gone before. American Express Co. v. United States, 212 U. S. 522, 534. Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174,181. Brennan v. Brennan, 185 Mass. 560. Considine v. Metropolitan Life Ins. Co. 165 Mass. 462,464, 465. The substance of the second sentence of the amendment shows unequivocally that its introductory word “Provided” is used in its natural sense and true office. Its words are those of condition and qualification. They express clear and definite limitation in at least two particulars upon the amplitude of power described in the preceding sentence. The first limitation defines the minimum number of inhabitants which a town must contain before the power of the Legislature can become operative. The second limitation is that no city government shall
The concluding sentence of the Second Amendment has no relevancy to the questions here presented.
The Second Amendment was proposed by the Constitutional Convention of 1820. The report of the debates of that convention shows how jealous was the feeling in favor of the town system of government, then universally prevailing, and against any change except in such populous centres as imperatively required some different system. The attachment of the people to the town meeting form of government was profound and its essential characteristics were guarded with sedulous care. It cannot be thought that
It sometimes has been suggested that the words of a constitution may be construed in a directory rather than in a mandatory sense. Respecting that matter there is found this cogent and convincing statement in Cooley, Const. Lim. (6th ed.) 93: “Courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument, and usurping the proper province of ordinary legislation. We are not therefore to expect to find in a constitution provisions which the people, in adopting it, have not regarded as of high importance, and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting the times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument, when we infer that such directions are given to any other end. Especially when, as has been already said, it is but fair to presume that the people in their constitution have
This conclusion is supported by the great weight of authority in other jurisdictions. Prothro v. Orr, 12 Ga. 36, 42, 43. State v. Bankers’ & Merchants’ Mutual Benefit Association, 23 Kans. 499, 501. Metropolitan Casualty Ins. Co. v. Basford, 31 So. Dak. 149, 166-169. People v. Lawrence, 36 Barb. 177, 186-188. Coleman v. Eutaw, 157 Ala. 327, 336, 337. State v. Osborne, 14 Ariz. 185, 192. Crawford v. Gilchrist, 64 Fla. 41. Varney v. Justice, 86 Ky. 596,601. State v. Hitchcock, 241 Mo. 433, 464, 465. Crabbe v. Celeste Independent School District, 105 Texas, 194, 198. People v. Leddy, 53 Col. 109, 112, 113. State v. Tibbets, 52 Neb. 228, 233. Memphis Street Railway v. Byrne, 119 Tenn. 278, 287. Fidelity Ins. Trust & Safe Deposit Co. v. Shenandoah Valley Railroad, 86 Va. 1, 5.
Such, then, is the meaning of the Second Amendment. It remains to inquire whether there was conformity thereto in the enactment of Spec. St. 1917, c. 289.
The petition to the General Court for the incorporation of the town of Methuen as a city was signed by the three persons who were the selectmen of the town, alleging themselves to be “citizens of Massachusetts.” Against their signatures were written the words “Board of Selectmen.” No town meeting was held in Methuen for the purpose of considering the question whether application should be made to the General Court for a city charter, and the town took no action in any manner or form to that end.
It is plain that there was no vote of a majority of inhabitants of Methuen in favor of an application to the General Court for the granting of a city charter at a meeting duly held and warned for that purpose before the enactment of Spec. St. 1917, c. 289.
The proceedings of the town relative and antecedent to the enactment of Spec. St. 1916, c. 116, entitled “An Act to provide for
It was conceded during the argument at the bar that the so called limited town meeting had not undertaken in any way to commit the town to the city form of municipal government. Therefore it becomes unnecessary to consider the force and meaning of § 10 of c. 116, Spec. St. 1916.
The joint legislative committee on cities held a public hearing at the town hall in Methuen on March 1, 1917, pursuant to an advertised notice to persons interested in a bill providing for a city charter for Methuen. .The hearing was largely attended but the number present is unknown. This was a hearing by a legislative committee. Its conduct and procedure were under the management of that committee. It was not presided over by the moderator of the town; no check list was used and no records kept by the town clerk. That was not a town meeting. It did not purport to be a town meeting. The legislative committee did not undertake to call a town meeting. It had no authority to call a meeting of the voters of the town. That can only be done by a warrant under the hands of the selectmen directed to the constables or other designated persons, and, in the event of their
It is a principle of constitutional law early declared and consistently followed by this court that every rational presumption is made in favor of the validity of an act of the Legislature, and its enforcement will not be denied unless its conflict with the Constitution admits of no reasonable doubt. Perkins v. Westwood, 226 Mass. 268, and cases collected at page 271. Norwich v. County Commissioners, 13 Pick. 60, 61. In re petition of Mayor & Aidermen of Northampton, 158 Mass. 299, 304. Commonwealth v. O’Neil, 233 Mass. 535,541. This principle is kept constantlyin mind. No other course, however, is open to us in the case at bar. It is impossible to say that a subsequent acceptance by the voters of a town of a statute establishing it as a city is compliance with the plain requirement of the Second Amendment to the effect that the application for the enactment of such a statute must come first from the town acting under its town meeting form of expression of public sentiment before the General Court has power or authority under the Constitution to enact such a statute. We are constrained to hold that Spec. St. 1917, c. 289, was not enacted in accordance with art. 2 of the Amendments to the Constitution.
The further question now arises whether the writ ought to issue under the circumstances here disclosed, notwithstanding the violation of the Constitution in the enactment of the city charter. It was said in Stoughton v. Baker, 4 Mass. 522, 528: “No loches can be imputed to the government, and against it no time runs so as to bar its rights.” The rule of numerous early English cases concerning quo warranta is to the same effect. The King v. John, 8 Mod. 132. The King v. Powell, 8 Mod. 166. The King v. Pyke, 8 Mod. 286. Winchelsea Causes, Burr. 1962. See however The King v. Peacock, 4 T. R. 684. Estoppel does not apply ordinarily against the exercise of a public right. The interests of the Com
There is, however, another principle to be considered in this connection. The granting of relief by quo warranta, even when sought at the instance of the Attorney General, in behalf of the public, is not a matter of absolute right but is a subject for the exercise of sound judicial discretion. It is the duty of the court to consider all the conditions, including immediate and remote consequences and to determine with a broad vision of the public weal whether on the whole the common interests demand the issuance of this extraordinary remedy. Where the legality of the organization of a municipality is concerned, then even the Attorney General in his public capacity cannot as of right demand the issuance of quo warranta. His application must be considered in all its bearings as related to the general welfare. One of the grounds on which quo warranta was denied in Commonwealths. Athearn, 3 Mass. 285, 287, was said by Chief Justice Parsons at page 287 to be that “in the present case it would not be a discreet and proper exercise of their authority.” As Lord Mansfield put it in The King v. Stacey, 1T. R. 1, at page 2: “ The court are bound to consider all the circumstances of the case, before they disturb the peace and quiet of any” municipal corporation. Where important public interests have become affected and there has been considerable delay, sound judicial discretion may require denial of affirmative action and refusal to oust a municipality from the exercise of its franchise. This proposition is supported by the great weight of authority and no decision to the contrary has come to our attention. State v. Des Moines, 96 Iowa, 521, 531 to 536. Jameson v. People, 16 Ill. 257.
In this particular the practice touching quo warranta conforms to that which prevails as to other extraordinary writs. The granting of the writ of mandamus is not a matter of right but rests in sound judicial discretion. Smith v. Commissioner of Public Works of Boston, 215 Mass. 353, and cases collected. The same is true of the writ of certiorari. Sears v. Mayor & Aldermen of Worcester, 180 Mass. 288, and cases cited. Swan v. Justices of the Superior Court, 222 Mass. 542.
The present information, although brought by the Attorney General “in behalf of the Commonwealth,” is also averred to be “ at the relation of Charles W. Mann, of Methuen in the County of Essex.” The concluding paragraph of the information opens with these words: “Wherefore, the Attorney-General upon relation of Charles W. Mann, as aforesaid, prays. . . .” The only facts revealed by the record concerning the relator are that he was present and took part in the hearing before the legislative committee at the town hall in Methuen on March 1, 1J917, and there stated “that the town ought to have the right of voting whether it wanted a charter or not;” that since the alleged adoption of the charter he has once been nominated as a candidate for the city council, not at that time having actual knowledge of any constitutional defect in the city charter, and that as soon as he knew of the alleged defects he objected to the validity of the charter by disclosing to the Attorney General the defects set forth in the information. Although the brief for the informant before this court is signed by the Attorney General and one of his assistants, it is also signed by counsel for the relator and the only oral argument was made by counsel for the relator. The permission of such argument must not be taken as a precedent. The granting of a city charter is an attribute of the sovereign power. It cannot be assailed in this form of proceeding by one who has only the standing of a private citizen. An information of this nature must be prosecuted
If the name of the relator be rejected as surplusage, enough would remain to show that the information was filed by the Attorney General in behalf of the Commonwealth. The case is treated on that footing.
The relief sought is to have a judgment of ouster against a municipality from exercising the functions of a city because a statute, which has received the affirmative action of the legislative department of government and the approving signature of the Governor, is contrary to the fundamental law. The establishment of a city in place of a town form of government is the exercise of a legislative function of a high order. It involves immediate and important public interests. A city charter cannot in the nature of things be enacted except after a generous degree of publicity. This charter was approved by the Governor on April 17,1917. A period of nearly nine months elapsed before a city government was inaugurated -upon its supposed authority. During that period of course the validity of the charter might have been tested in appropriate proceedings. See Graham v. Roberts, 200 Mass. 152. The inauguration and maintenance of a city government is full of publicity. Methuen has been recognized as a city by the General Court in several statutes enacted subsequent to Spec. St. 1917, c. 289. See St. 1919, c. 340; St. 1920, c. 83; Spec. St. 1918, cc. 36, 184. See also Spec. St. 1919, c. 215. State taxes have been assessed upon Methuen as a city, the collection of which must have been made through the instrumentality of those purporting, under Spec. St. 1917, c. 289, to be officers of the city. Sts. 1918, c. 279; 1919, cc. 344, 346; 1920, cc. 557, 612. The same is true of county taxes. St. 1919, c. 343. The population of the town of Methuen according to the State census of 1915 was slightly in excess of fourteen thousand. It is manifest that in so large a community considerable sums of money must have been raised by taxation and expended for public uses. All the manifold activities of a municipality have been carried on for about two years and a half under the supposed authority of Spec. St. 1917, c. 289, as a valid city charter before
All these considerations lead to the conclusion that it would not be a discreet exercise of judicial power and would not be in conformity to the general public interest to grant the relief prayed for. Whatever legal consequences may flow from the fact that the city charter of Methuen is an unconstitutional statute must be met as and when they arise. Our refusal, in the exercise of sound judicial discretion, to issue the extraordinary writ of quo warranta under the circumstances, cannot affect those consequences. Those consequences may be alleviated so far as possible by taking the obvious steps to remedy the present situation, and to put Methuen upon the basis of a constitutional charter.
Information dismissed.