112 Mass. 1 | Mass. | 1873
The single question, presented for decision in this case, is whether a town has the legal right and power to raise by taxation or .pledge of its credit, or to pay from its treasury any money for the expenses of a committee directed by a vote of the town to petition the legislature for the annexation of the town to the city of Boston, and to appear with counsel to advocate the annexation.
It is well settled by our decisions, that towns derive all their authority to tax their inhabitants from the statutes; if the authority to tax for a particular purpose is not found there, either in express terms or by necessary implication, it does not exist. If it is to be found, the action of the town in such case is binding and conclusive; and whether the town acted wisely and with proper discretion is not a subject of investigation or revision by this court. It is not necessary to cite all the authorities to this proposition; the earliest and the latest cases lay down this rule. Stetson v. Kempton, 13 Mass. 272. Friend v. Grilbert, 108 Mass. 408. Higginson v. Nahant, 11 Allen, 530.
It is not contended by the defendants that the power to tax its inhabitants for such a purpose is specifically given or comes within any of the objects enumerated in the statutes for which towns have authority to raise money. But it is argued, that the annexation of a town to a city is a matter nearly affecting the rights of a town, that it relates to and involves questions of municipal concern, that a town has a right to petition the legislature for such a purpose, and that the expenses attending such application fall properly within the final clause of that section of the statute authorizing towns to raise money “ for all necessary charges arising therein.” Gen. St. e. 18, § 10.
This clause has received judicial interpretation in a series of well considered cases. The leading case is Stetson v. Kempton, supra. The meaning of the word “ necessary ” in the statute is discussed at length by Chief Justice Parker, with a fulness of illustration in regard to the various expenses which may be said to fall within the words “ necessary charges,” that seems to exhaust the subject, and has not been materially enlarged by later decisions. He says: “ The phrase necessary charges ’ is indeed general; but the very generality of the expression shows that it must have a reasonable limitation. For none will suppose that under this form of expression every tax would be legal which the town should choose to sanction. The proper construction of the term must be that in addition to the money to be raised for the poor, schools, &c., towns might raise such sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to employ, the support and defence of such actions as they might be parties to, and the expenses they would incur in performing such duties as the laws imposed, as the erection of- powder houses, providing ammunition, making and repairing highways and town roads, and other things of a like nature, which are necessary charges because the effect of a legal discharge of their corporate duty. The erection of public buildings for the accommodation of the inhabitants, such as town houses to assemble in, and market houses for the sale of provisions, may also be a proper town charge, and may come within the fair meaning of the term necessary; for these
Following this rule of construction, this court has held expenditures to be legal, though not within the express terms of the statutes, but incidental to and within the scope of the powers of a town; as for the erection of market and town houses, and the construction of reservoirs to supply fire engines; Spaulding v. Lowell, 23 Pick. 71; French v. Quincy, 3 Allen, 9; Hardy v. Waltham, 3 Met. 163; for the support of a public clock, as within the jurisdiction of a town in the same manner as hay scales, burying grounds, wells and reservoirs, being objects of convenience and necessity to the inhabitants. Willard v. Newburyport, 12 Pick. 227. A town may also indemnify its officers against
It is not important to cite the numerous cases in which votes of towns have been declared illegal and void by this court, as none of them turn on the special construction of these words in the statute, or in any way modify or change the rule of construction previously stated.
We are therefore brought directly to the question whether this vote of the town of West Roxbury was an abuse of legal right and power. Upon a review of the authorities, and upon principle, it is very clear, that towns, deriving all their power to raise money and tax their inhabitants from the statutes, must necessarily be confined in their expenditures of money, and the consequent power to tax their inhabitants therefor, to the objects and purposes named in the statutes, and to those other objects and purposes not named, but so connected with and incidental to the objects named, and so directly within the line of their corporate duty and power in the ordinary administrations of their affairs as towns, that they may be fairly presumed, by necessary implication, to be included in the words “ other necessary charges.” Such incidental power must spring from some power granted in terms, and relate to a subject matter set forth with distinctness in some portion of the statutes, and which is in some way necessary for the town to do in carrying out and performing its corporate duties, as an existing body politic. Else it has no power to tax its inhabitants, for the principle of a tax is that it ia necessary by reason of a public duty in the town to do something in obedience to and imposed by public law.
It was urged in argument that the annexation of a town to a city was a matter affecting the rights of a town, and was- of municipal concern as affecting the roads, the poor, water supply, &c., and so the town could take action thereon. Because annexation may cause a change in the local administration of affairs, it does not follow that the town as a corporation can have any interest therein. The only action the town can take in regard to such matters of municipal concern is by dealing with them itself, not by thrusting them on other corporations, and taxing its citizens for the expenses thereby incurred. The people of a town may be interested in, and their municipal affairs may be affected by, the building of a railroad or the establishment of a manufacturing corporation within their town limits; but the town in its corporate capacity would have no right, without special legislative authority, to tax their inhabitants to promote such undertakings, whatever the advantage in local prosperity which would result. It was also argued that this vote might rest on the ground of usage. No such usage appears of which we can take notice. But usage could not sanction such an appropriation of money; for usage, to be binding, must be not only general, reasonable and long continued, but must also be a custom connected with the exercise of some corporate power or the enjoyment of some corporate right, or which contributes essentially to the convenience or necessities of the inhabitants. Hood v. Lynn, 1 Allen, 103, 106.
This the inhabitants of West Eoxbury have the right to do, and to ask for any changes in the laws which they think necessary or desirable. But it does not follow that such action would be in the nature of corporate action by the town, or that it would necessarily involve the expenditure of money; and it certainly does not follow that it is a purpose for which the town can raise money in the absence of any statute provisions.
We are therefore of opinion that the vote was an abuse of legal right and power, and the entry must be Demurrer overruled.