| R.I. | Jul 27, 1878
Lead Opinion
The first and third exceptions to the answer of the defendants Doyle, Angell, Coggeshall, Earle, Spicer, Brayton, Daboll, Sprague, and the City of Providence, are overruled.
The second exception to the answer of the defendants named is sustained.
The answer denies that the real purpose of the purchase of the lots was, as charged in the bill, to enable said city to harass the complainant, Clark, in his use of the portion of the Dorrance Street Association Wharf owned and leased by him, and thereby compel him to either abandon or settle the claims which he had upon said city, by reason of its emptying its sewers into the dock and public waters adjacent to said wharf, and avers that the real purpose of the purchase was the use of said lots in *4 connection with the highway department, and for other public purposes.
We think the answer should set forth specifically what were the other public or municipal uses for which the lots were purchased, and should also aver that the purposes mentioned in the answer were not only the real but the sole purposes of the purchase.
The first exception to the answer of the defendants, Snow and Spencer, is overruled, as is also so much of the second as relates to the answer to the forth interrogatory. The residue of the second exception, namely, those portions relating to the answers to the first, second, third, and seventh interrogatories, is sustained.
Instead of confessing or denying that the purpose of the purchase was as charged in the first interrogatory, these defendants set forth the purposes which they allege to have been the purpose of the purchase. Instead of confessing or denying that the chief or only purpose of the resolution of January 8 was in furtherance of the purpose mentioned in the first interrogatory, as charged in the second interrogatory, they state that the resolution was in furtherance of the objects named in their reply to the first interrogatory. Instead of confessing or denying that the insertion in the resolution of January 8, that such purchase was made for highway purposes, was for the purpose of evading the injunction or avoiding what was understood to be the decision of the court, as charged in the third interrogatory, they answer that the understanding in relation to the reason the injunction against the first purchase was granted was because the public uses for which the property was purchased were not set forth in the resolution, and that it was to meet that objection that the resolution of January 8 was passed. Instead of confessing or denying the intention to use the lots as charged in the seventh interrogatory, they refer for their answer to it to their answer to the first interrogatory.
The defendants should have answered their interrogatories directly, confessing or traversing the substance of the charges contained in each. This they have not done. They do not admit the charges, but allege new matters, which negative the charges only by implication.
Decree accordingly. *5
After the foregoing opinion amended answers were filed, and the cause came on to be heard October 3 and 4, 1877.
Addendum
This case was heard upon bill and the amended answers and oral evidence.
The power of a court of chancery to control a municipal corporation in order to prevent any abuse of its powers or any perversion of its funds is too well established to admit of any doubt, and that the application for its exercise may be made by tax-payers, as well as by the English practice of an information by the Attorney General, is also well supported by authority. That the power should be cautiously exercised need hardly be observed; but the existence of the jurisdiction may be very necessary to protect the rights of a minority of tax-payers against the illegal acts of a majority.
And the power to compel the parties to repay the money and to restore the former condition of things is as essential as the power to enjoin an appropriation or payment of money, otherwise the corporation, by speedy action and payment, might anticipate and defeat the relief to which the complainants are entitled.
And it is also well settled that the parties may resort to evidence ab extra to show the true object and intent of the municipal action.
And from the answers and the oral evidence it is well established that the purchase was not for any of those purposes for which the city may lawfully purchase, but was primarily, if not solely, for the purpose of enabling the city to obtain a control of certain property, and to make use of it in settling a lawsuit with one of its citizens.
Another point was made by the counsel for the complainants, that as the city made the purchase from the aldermen, they were judges in their own case of the price they were to have; and that by analogy to the case of a trustee the purchase should be set aside. But it is not now necessary to decide that question.
We think we ought to say that there is in the present case no charge or ground of suspicion of any personal dishonesty, or that any members of the city government have in any way whatever made any personal profit out of the transaction. See AttorneyGeneral v. Aspinall, 1 Keen, 513; 2 Myl. C. 613; Attorney *6 General v. Wilson, 9 Sim. 30, 526; 1 Craig Ph. 1, and cases cited in Dillon on Municip. Corp. §§ 730-736.
We think, therefore, relief should be granted.