198 Mass. 221 | Mass. | 1908
The town of Middleborough voted no license in regard to the sale of intoxicating liquors in the year 1903, and appropriated at the annual meeting in that year $500 to employ counsel and prosecute the illegal sale of intoxicating liquor in the town. One Greene, a special police officer, was duly appointed by the authorities of the town a committee to have charge of the money so appropriated. He and one Luippold, a constable of the town, arrested or caused to be arrested one O’Hara for illegally transporting intoxicating liquors into the town and for bringing intoxicating liquors into the town with intent to sell the same. O’Hara was acquitted on both complaints, and afterwards sued Greene and Luippold for malicious prosecution and false arrest. Greene and Luippold were put to expense in defending the action, and, at the annual town meeting held in March, 1907, under an article in the warrant to see if the town would vote to reimburse Greene and Luippold for the money expended by them in defending the action brought by O’Hara, the town voted to expend $200 therefor. Thereupon this petition was brought under E. L. c. 25, § 100, by more than ten taxpayers of the town of Middleborough to restrain the payment of the money so voted. The case was heard upon agreed facts and the presiding justice ordered the petition to be dismissed and reported the case to this court. If the town had no right to appropriate the money, a permanent injunction is to issue; otherwise the petition is to be dismissed.
Towns cannot raise and appropriate money except for the purposes for which, within the scope of the Legislature’s constitutional powers, they are expressly or by fair implication authorized by statute to raise and appropriate it. This results from the nature of and limitations upon their powers in our scheme
Under the present system in regard to the sale of intoxicating liquors in this State, the question whether such liquors shall or shall not be sold in any city or town is wholly one of local determination. This is on the ground that the matter is supposed to be best dealt with as one of local concern, and that the citizens of such city or town have a special and peculiar interest in it and should therefore be left to decide it for themselves, as in the case, for instance, of what roads or streets they will have. This of itself, in view of the way in which cities and towns are or may be affected, would seem to give a town such a corporate interest in the enforcement of the law as to warrant the appropriation in question. But in Dunn v. Framingham, 132 Mass. 436, it was held that selectmen acted in the enforcement of the law relating to the sale of intoxicating liquors, not as public agents, but as agents of the town, and a vote appropriating $700 for the enforcement of the liquor law, and authorizing the selectmen to employ agents and counsel, was held valid. The reasoning of the court proceeded on the ground,
Bill dismissed.