110 Mass. 118 | Mass. | 1872
Lead Opinion
This" case comes before us upon a demurrer to the return of the respondent to an alternative wri* of mandamus, issued upon the petition of a majority of the board of water commissioners of the town of Holyoke.
A majority of the court is of opinion that a peremptory writ of mandamus should issue. The object of the petition is to compel the respondent to deliver into the hands and custody of the board of water commissioners the water bonds signed by the treasurer and countersigned by the chairman of the selectmen, under the “ Act to supply the town of Holyoke with pure water.” St. 1872, e. 62;
The respondent contends that, as treasurer of the town, it is his duty to receive and take charge of all sums of money belonging to the town, and to pay over and account for the same according to the order of the town or its duly authorized officers, and therefore that he ought not to part with said bonds, or permit them to go out of his custody and control, except on the receipt of their value or proceeds. We think his view of his rights and duties is founded upon an erroneous construction of the statute and of the votes of the town passed under it.
The fourth section of the statute provides that the town, for the purpose of paying the expenses of supplying itself with water, may issue coupon bonds, to be denominated “ Holyoke Water Bonds,” to an amount not exceeding §250,000, “ and said town may sell said bonds at public or private sale, or pledge the same for money borrowed for the purposes of this act, upon such terms and conditions as it may deem proper.”
The fifth section provides that “ the treasurer of said town, ex officio, and six persons to be elected by ballot by the inhabitants, as hereinafter provided, shall form a board of water commissioners, who shall execute, superintend and direct the performance of all the works, matters and things mentioned in this act, and exercise all the rights, powers and privileges hereby granted, and not otherwise specially provided for herein, subject to the vote of said town.”
The sixtn section provides for the election of the six commissioners, so that two shall be elected each year for a term of three
The seventh section provides that the commissioners shall establish prices or rents for the use of the water, so as, if practicable, to create a sinking fund for the extinguishment of the bonds, and that “ said commissioners shall be trustees of said fund, and shall annually, and as often as said town may require, render an account of all their doings in relation thereto.”
The act was duly accepted by the town at a legal meeting. At the same meeting the commissioners were elected, and votes were passed authorizing them to take immediate measures for the introduction of water under the act, and “ to issue coupon bonds signed by the treasurer and countersigned by the chairman of the selectmen,” as provided by the act, and it was also voted “ that the board of water commissioners be authorized to negotiate the Holyoke Water Bonds in such amounts and at such times as they may deem best.”
At a subsequent meeting it was voted, “ that in addition to the taking and holding of lands and water, as provided in the previous vote, the board of water commissioners be authorized to exercise, in the name of the town of Holyoke, all the other powers granted to said town by section 2 and section 3 of the act of the Legislature of Massachusetts, entitled an act to supply the town oí Holyoke with pure water, approved March 7, 1872, such powers to be held and exercised by said board in such a manner as a majority thereof shall determine, and that said board be authorized to pay all costs of constructing the waterworks authorized by said act, and all expenses incurred in carrying out the provisions of this vote and the previous vote, out of the proceeds of the sale of the Holyoke Water Bonds provided for in said act.” It was further voted, “ that the board of water commissioners be authorized, _f in their judgment it shall be expedient, to pledge the Holyoke Water Bonds to such amount as they shall see fit for the money borrowed to carry on the construct] >n of waterworks as voted by the town.”
Under the act and the votes, most of the powers and duties created by the act are to be exercised and performed by the water commissioners in the name of the town. They are to take lands and water by purchase or otherwise, to construct the waterworks, to issue the water bonds after they are signed and countersigned, to negotiate them in such amounts and at such times as they deem best, to sell or pledge them as they find necessary, to establish water rates, and to act as trustees of the sinking fund. Both the act and the votes of the town provide that these powers and duties may be exercised and performed by a majority of the board ; and independently of these provisions, the joint authority conferred upon the board would be construed as giving such authority to a majority. Gen. Sts. c. 3, § 7, el. 3. The claim made by the defendant is. inconsistent with the full powers thus cor ferred upon the board. The power given to the board to issue and negotiate, to sell and to pledge the bonds, necessarily implies that they are to have the custody and control of them in order to issue and dispose of them.
The act makes the treasurer one of the board of commission ers, but there is nothing in it to indicate that he is to have any greater power than any other member of the board. We cannot yield to the argument that because the treasurer is, ex officio, a member of the board, it is to be implied that he is to have the custody of the bonds and of their proceeds as treasurer, and is responsible for them under his official bond. Such an implication is in conflict with the powers conferred by the act and the votes upon a majority of the board, and therefore cannot arise. It follows of course that, if the town intrusts its money to an independent board, the treasurer is not responsible for it under his official bond to the town. We cannot know the object of putting
But the respondent objects that, if the treasurer improperly refuses to deliver the bonds, the proper party to apply for a mandamus is the town, and that the petitioners, having only the same interest which other citizens have, cannot maintain this application. We do not understand him as contending that mandamus is not the proper remedy, to compel him to perform his duty, but that these petitioners are not the proper parties to apply for it. Undoubtedly, when a private citizen applies for a writ of mandamus, he must show that he has some special interest in the subject matter different from the interest which every other citizen has. But these petitioners are a majority of and represent the board of water commissioners. They do not apply as private citizens, but as a board of public officers charged by law with the performance of important public duties, which they cannot perform while the respondent refuses to perform his duty. As such officers, they are entitled to demand the bonds, and it falls within the scope of their general powers to apply for a proper process to enforce their demand. We are of opinion that they are the proper parties, and entitled to maintain this petition. Wellington, petitioner, 16
Pick. 87. Waldron v. Lee, 5 Pick. 823.
Peremptory writ of mandamus to issue.
Dissenting Opinion
dissenting. I regret that I feel compelled to dissent from the decision of the court in this case.
It is a writ of mandamus, issued in behalf of a majority of the persons composing the “ board of water commissioners ” for the town of Holyoke,-against Charles W. Eanlett, who is the treasurer of the town of Holyoke, and, as such, by the terms of the act of the Legislature authorizing the creation of the board, is made, ex officio, a member thereof. By the decision of the court, Eanlett is compelled to surrender the bonds of the town, prepared for the purpose of raising money to meet the expenses of the works to be undertaken, into the possession and control of the petitioners for this writ.
It appears to me that the argument is very strong in favor of the position of the respondent, that it was the intention of the act that the creation and negotiation of the bonds, the custody and control of the funds arising therefrom, and the payment of liabilities incurred by the town in the execution of the work, should be conducted by the selectmen and treasurer, in the ordinary mode of conducting the financial affairs of the town. But conceding that the act would authorize the town to vote, as it did, that “ the water commissioners be authorized to issue ” the bonds and to negotiate them “ in such amounts and at such times as they may deem best,” it does not relieve the case of its difficulties.
In the first place, the commissioners, exercising such an authority, are but the agents of the town, acting in its name and behalf. They have no rights or interests of their own, and no public duty, except as the mere agents of the town. They are not entitled to maintain any action for the possession of the bonds otherwise than in the name and by the express authority of the town. Bates v. Overseers of the Poor of Plymouth, 14 Gray, 163. Much less can individual members of the board, although constituting a majority, maintain it against other members of the same board.
But the most serious objections are not matters of form. As I interpret the votes of the town, they do not authorize a majority of the commissioners to withdraw the bonds from the custody and control of the treasurer of the town, otherwise than by their negotiation and sale, or deposit in pledge. The statute, if it does not forbid any such proceeding, certainly contemplates that the treasurer will be the financial officer of the board. It is not RanLett who is, by the explicit provisions of the act, made a member »f the board ; but the treasurer of the town “ ex oficio ” So far
But I do not find, in the votes of the town, any indication of a purpose to commit its funds or securities to any other custody than its own treasury. The authority to negotiate the bonds was given to the board of commissioners as a body, of which its treasurer was one. The vote authorizing the board to exercise its powers “ in such manner as a majority thereof shall determine,” is expressly limited to the powers conferred by the second and third sections of the act, which do not relate to the bonds. Doubtless a majority may exercise powers thus conferred, unless specially restricted. But the authority given1 is simply to negotiate the bonds, “ in such amounts and at such times as they may deem best.” Such a vote does not imply any different custody from what would result in case the negotiation were to be made by the selectmen, or any other agent appointed for the purpose by the town; especially when the treasurer is one of the officers charged with the negotiation.
It is said that the treasurer refuses to perform his duty, withholds the bonds, and obstructs the commissioners in the proper exercise of their authority to negotiate them. If so, he may undoubtedly be compelled to perform his duty in this particular by a mandamus properly brought. But the writ should command him to perform his duty as treasurer and commissioner; it should not deprive him of his office as commissioner, nor of his proper custody of the funds or securities of the town as treasurer.
The grounds, relied on for the support of these proceedings, we have before us only as they are recited in the writ. They are, in substance, only that the commissioners “ had duly requested ” the respondent “ to sign the bonds and to deliver the same into the custody of said board,” but the respondent “ had refused and still refused so to do, claiming that in his capacity ox
To this it is well answered that such obligations are debts, not of the commissioners, but of the town, and to be paid by the town.
But taking this statement as equivalent to an averment that there is occasion or necessity for negotiating bonds to raise money for the purposes of the act, I submit that no ground is shown for this writ; because it is not shown that the respondent has done any act, or refused to do any act, whereby he has in any way obstructed the accomplishment of that purpose in any proper mode. By the demurrer his return is admitted to be true ; and it must be so taken by the court. He states “ that he has, and had before the petition for this writ was made, signed the bonds in his official capacity, and is ready to deliver them to any person or persons when thereto instructed by the proper authority, on receiving the amount for which they shall have been negotiated or pledged by any one having authority to sell or pledge them.” It is true he adds a denial of the authority of the commissioners to negotiate the bonds ; and of the town to give them such authority by its vote; and avers that, “ by the by-laws of the town, it is made the duty of the treasurer to negotiate all loans that may be made for the town, under the authority and sanction of the selectmen.”
If this assertion in his return, or this denial of the authority of the commissioners, not disclosed in the writ itself as a cause for its maintenance, may nevertheless be availed of as a good ground for sustaining the writ for any purpose, it should go no farther than a direction to the respondent to hold the bonds subject to delivery upon the order of the board of commissioners upon sale or pledge thereof by them, receiving the proceeds of such sale or pledge in return.
But that is not what these petitioners seek, nor what the writ, as issued, directs. The complaint, as recited in the writ, discloses nothing but a controversy in regard to the proper custody and
