Carlton v. City of Salem
103 Mass. 141
Mass.
1869
Check Treatment
Morton, J.

We are of opinion that the court has no jurisdiction in equity in this case, and that the demurrer must be sustained.

The Gen. Sts. c. 18, § 79, provide that “ when a town votes to raise by taxation or pledge of its credit, or to pay from its treasury, any money, for a purpose other than those for which it has the legal right and power, the supreme judicial court may, upon the suit or petition of not less than ten taxable inhabitants thereof, briefly setting forth the cause of complaint, hear and determine the same in equity.” Assuming that all the facts alleged in the bill are true, yet the plaintiffs have not brough themselves within the provisions of the statute. There is no allegation that the city of Salem has voted to raise by taxation, or by a pledge of its credit, money for an illegal purpose, or tho'' *143it has voted to pay from its' treasury any money for such purpose. The allegations of the bill are, in substance, that the city has passed certain ordinances and made certain contracts in regard to the distribution of water, and the establishing of rates therefor, which must lead to taxation in the future for an illegal purpose, and that the city intends to raise money hereafter by taxation or pledge its credit for such purposes. These facts are not sufficient to.bring the case within the statute. By its plain provisions, it is not until a town or city votes to raise money by taxation or a pledge of its credit, or votes to pay money from its treasury for an illegal purpose, that the right of ten or more inhabitants to maintain a suit in equity arises.

But the plaintiffs’ counsel contend that this bill may be sustained under the general equity jurisdiction of the court, independently of the statute. No authority is produced to sustain this position, and we are unable to see any principle of equity jurisdiction under which the bill can be maintained. The only ground suggested is, that the city and its officers are trustees for the management of the waterworks; but the case of Hale v. Cushman, 6 Met. 425, seems decisive against this view; for, although the equity jurisdiction of the court has been enlarged since that case was decided, it has been by extending it to other subjects, and the court then had full jurisdiction in relation to the enforcement and regulation of trusts.

The cases of Simmons v. Hanover, 23 Pick. 188, and Cooley v. Granville, 10 Cush. 56, cited by the plaintiffs, were brought under the St. of 1839, c. 60, which expressly conferred jurisdiction in such cases. This statute and the seventy-ninth section of chapter eighteen of the General Statutes create a strong implication against the existence of the general equity jurisdiction claimed in this case. These statutes, enacted for the purpose of conferring jurisdiction, were unnecessary, if the court already had jurisdiction of the subjects embraced in them. The object of the bill in this case is to compel the city of Salem and its officers to perform a duty imposed by law. We are of opinion that a bill in equity by one or more of the inhabitants, to enforce this duty, cannot be maintained.

Demurrer sustained.