236 Mass. 463 | Mass. | 1920
The plaintiff’s land was taken on November 18, 1915, by the defendant for municipal purposes. She was awarded damages in the sum of $19,650, which she refused to accept and brought a petition for a jury to assess the damages. The petition is now pending. On June 24, 1916, the defendant tendered to the plaintiff the amount awarded with interest, which the plaintiff accepted as payment pro tanto, without prejudice to her rights. St. 1904, c. 317. At a meeting of the municipal council of the city of Lowell on December 26, 1916, at which three members were present, it was voted to pay the plaintiff the sum of $2,772.51 “in settlement of a cause of action brought by her for damages in the matter of Dummer Street taking, said amount being in addition” to the sum already accepted in payment pro tanto. It was stated in the order, “This vote is of urgent necessity for the
St. 1911, c. 645, § 27, provides that the municipal council of the city of Lowell shall not pass an order, resolution or vote appropriating money in excess of $500, or authorize a contract involving a liability in excess of $500, unless proposed in writing and unless a notice is published in a newspaper of the city not less than one week before its passage, except an order, resolution or vote for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency and is passed by a four fifths vote. Previous to the meeting of December 26, 1916, the vote ordering payment of $2,772.51 to the plaintiff was not submitted in writing to the municipal council and notice was not published in a newspaper as required by the statute.
A statement of the facts showing the urgency for the immediate preservation of the public peace, health or safety was not contained in the vote. It declared generally that “This vote is ■of urgent necessity for the immediate preservation of the public peace, health and safety,” without mentioning the particular facts constituting the emergency. We do not think it necessary, however, to decide whether the absence of this statement of facts rendered the vote invalid. See in this connection Amendments to the Constitution of Massachusetts, art. 48, The Referendum, II, Emergency Measures.
The only authority given the municipal council of Lowell to make an appropriation or enter into a contract in excess of $500 without the publicity required by St. 1911, c. 645, § 27, was to preserve the public peace, health or safety, and when the necessity for its preservation was immediate. The authority of the
The meaning of the words in the statute limiting expenditures in excess of $500 is plain. The Legislature gave the municipal council power and authority to appropriate the public funds in excess of $500 when the occasion demanded immediate action for the public good. The council, as the body entrusted with the responsibility of expending these funds, could do so only in the manner and for the purposes authorized by the statute. The provision requiring publication in a newspaper before making the appropriation was enacted for the benefit of the taxpayers and to protect their money from ill-advised action, and only in the event of some emergency calling for the prompt protection of the public peace, health or safety, could this provision be departed from. It was not intended that the name of the public health, peace or safety was to be invoked as a mere pretext for evading the statute. It did not follow, from the general declaration, that the health, peace or safety of the public was involved and the call urgent, that this statement was true. The vote on its face shows that no such question was before the council, and it cannot be even imagined how the settlement of the plaintiff’s petition for the assessment of land damages could be so urgent as to concern the immediate preservation of the public health, peace or safety within the meaning of the statute. The mere statement of the vote shows that no such question was really involved.
The municipal council of the city of Lowell consists of the mayor and four aldermen, to whom are entrusted the control and management of all its affairs, with the exception of the public schools. The statute provides that the majority of the members of the council shall constitute a quorum, that the mayor shall have the right to vote, and that the affirmative vote of at least three members shall be necessary for the passage of any order, ordinance, resolution or vote. St. 1911, c. 645, § 24. For the enactment of an emergency measure as described above, a four
If the statute stated in terms that a four fifths vote of all the members of the municipal council or of those elected as members
According to the report judgment is to be entered for the defendant; and it is
So ordered.