320 Mass. 63 | Mass. | 1946
This is a petition for a writ of mandamus to require the respondent board of water commissioners to turn over all moneys received by .it to the treasurer of the city of Haverhill. The case was submitted on a statement of agreed facts to a judge of the Superior Court, who, at the request of the parties, reported the case for the determination of this court. G. L. (Ter. Ed.) c. 213, § IB, added by St. 1939, c. 257, § 1; c. 231, § 111. See Codman v. Assessors of Westwood, 309 Mass. 433, 434. It was agreed that the respondent board from time to time receives moneys due from the inhabitants of Haverhill for water service which are deposited in the name of “Haverhill Water Works,” and has refused to turn them over to the city treasurer upon
The city charter of Haverhill, St. 1869, c. 61, as amended by St. 1908, c. 574, provides for a governing body known as the municipal council, consisting of the mayor and four aldermen. St. 1908, c. 574, § 19. There is no reference to water supply or water service in the foregoing statutes. That subject is covered by three other enactments: St. 1891, c. 348, entitled “An Act relating,to the water supply of the city of Haverhill”; St. 1892, c. 417, entitled “An Act for the protection of the water supply of the city of Haverhill”; and St. 1896, c. 433, entitled “An Act relative to the board of water commissioners and the water supply of the city of Haverhill.” It was provided in St. 1891, c. 348, that “If the city of Haverhill shall hereafter purchase or take the franchises, rights and property of the Haverhill Aqueduct Company, ... it shall thereupon have the sole, exclusive and perpetual right to hold the waters of . . . [certain named] great ponds within said city of Haverhill, as a source of water supply, with full power and authority to convey the water of said ponds through said city for the use of said city and the inhabitants thereof, for the extinguishment of fires and for domestic and other purposes, with full power and authority ... to regulate the use of water and to establish the rates to be paid therefor, and collect the same by process of law” (§ 1). Payments for the use of water are “to be collected in an action of contract in the name of the city” (§9). Persons guilty of certain acts of interference with the water supply “shall forfeit and pay to said city three times the amount of damage assessed therefor, to be recovered in an action of tort” (§8). The various powers and duties under the act are those of the city: the taking of property (§ 1); the filing of descriptions of such property in the registry of deeds (to be accompanied by a statement of the purposes of the taking signed by the water commissioners hereinafter referred to) (§2); the payment of damages sustained by a taking of property “or by any other thing done by the city under the authority of this act”
It is clear that the statutes relating to the water supply ' and the board of water commissioners are not a charter issued to that board, but are, in the words of St. 1896, c. 433, § 3, provisions relating to “the water department." This means “the water department" of the city, and such statutes are in substance and effect, although not so entitled, amendments to the city charter. Nothing contrary to this conclusion is to be deduced from the fact that in 1891 there
The main question for decision is whether the moneys received by the respondent board are subject to G. L. (Ter. Ed.) c. 41, § 35, as amended, which requires every treasurer of a municipality to give bond for the faithful performance of his duties, and provides, “He shall receive and take charge of all- money belonging to the town, and pay over an account for the same according to the order of the town or of its authorized officers. No other person shall pay any bill of any department.” As no reference to the custody of funds or to the bonding of a custodian of funds is found in St. 1891, c. 348, St. 1892, c. 417, and St. 1896, c. 433, we must first consider G. L. (Ter. Ed.) c. 41, § 35, in the form in which it stood when the three Haverhill water supply statutes were passed. Section 35 was then contained in Pub. Sts. c. 27, § 105, which read: “The town treasurer shall give bond in such sum as the selectmen require, with sureties to their satisfaction, for the faithful discharge of the duties of his office; shall receive and take charge of all money belonging to his town, and shall pay over and account for the same according to the order of such town or of the officers thereof duly authorized in that behalf.” This applied to cities. Pub. Sts. c. 28, § 2. As to the city of Haverhill, see St. 1869, c. 61, §§ 2, 12, 18. The substance of Pub. Sts. c. 27, § 105, except the requirement of a bond, goes back to very early times. It had origin in St. 1699-1700, c. 12. See Charters and General Laws of the Colony and Province of Massachusetts Bay, page 341. It was substantially reenacted along with the requirement of a bond in the general revisions of our statutes. Rev. Sts. c. 15, §§ 58, 64. Gen. Sts* c. 18, §§ 54, 59. Pub. Sts. c. 27, §§ 105, 110. See R. L. c. 25, § 72.
The respondent board contends that the language of the
We are of opinion that the Haverhill water supply statutes do not by clear implication require that the funds, which are “money belonging to the town,” should be kept by the respondent board, rather than by the treasurer as prescribed in general for all cities and towns by Pub. Sts. c. 27, § 105. Much of the argument of the respondent board founded upon the theory that the water board is not a department of the city, but is in the nature of a quasi-municipal corporation, is inapposite. No ground for dispensing with the bonded treasurer as custodian of the water funds is perceived in the provisions of St. 1891, c. 348, § 7, as amended by St. 1896, c. 433, § 6, which established the order in which obligations should be met out of the net water prices or rents after deducting distribution expense. The reference therein to the current expenses of the board is not a recognition that the board should have in its possession receipts with power to use them to defray certain necessary'expenses; and the provision that the. board “may expend from the annual receipts for the purpose of new construction a sum not exceeding twenty thousand dollars in any one year” is a limitation of the power of the board to affect the tax rate and is not an expression of an intention that the treasurer should not hold the funds. The same is true of the requirements, added by St. 1896, c. 433, §§ 1 and 2, five years after the creation of the water board, of
As the respondent board from the outset was never empowered to hold the moneys, there is no occasion to discuss St. 1920, c. 591, § 6, in which first appeared the provision, “No other person shall pay any bill of any department,/’ now found in G. L. (Ter. Ed.) c. 41, § 35, as amended. Likewise we need not discuss St. 1920, c. 591, § 7, which reads in part, “All moneys received by any town officer or department, except as otherwise provided by special acts . . . shall be paid by such officer or department upon their receipt into the town treasury,” and is now found in G. L. (Ter. Ed.)'c. 44, § 53.
The agreed fact that, if the funds should be turned over, “they will be used for any purpose allowed by law,” is immaterial to the question of law here determined. It does not sustain the allegation of the answer that the petition was not brought in good faith, and it surely does not mean that payment will not be made as required by St. 1896, c. 433, § 6. If the treasurer is, in any event, entitled to hold the funds, they must be given to him. Nor is it of importance to consider the city ordinances or the omission of the city to pass an ordinance empowering the city collector to collect water accounts, as)permitted by G. L„
Judgment is to be entered ordering the writ to issue commanding the respondent board to turn over to the city treasurer all moneys received by it for water service.
So ordered.
See St. 1908, c. 574, § 19.
See St. 1908, e. 574, § 19.