198 Mass. 248 | Mass. | 1908
The waterworks of the city of Fall River have been constructed, and rates for the use of the water supplied thereby have been fixed, under the authority of St. 1871, c. 133, and some other special acts relating to the water supply of that city. Sts. 1873, c. 356 ; 1874, c. 244; 1875, c. 222; 1891, c. 114; 1893, c. 220; 1894, c. 233; 1895, c. 478; 1897, c. 285; 1900, c. 156. By a city ordinance of Fall River, adopted in 1874, in pursuance of the provisions of St. 1871, c. 133, § 7, the Watuppa water board was created and has since been maintained, and has had the care and management of these waterworks. Revised Ordinances of Fall River, ed. of 1879, c. 39. Ed. of 1904, c. 46. By the ordinances of Fall River in force up to November, 1907, it was provided that all receipts from water rates should be paid to the city treasurer and placed by him to the credit of the waterworks, and should be appropriated, first to the payment of the expenses of the management and repairs of the works; and then, in the order mentioned, to the payment of interest on the water loan, to pay for extensions within certain limits, for expenses to be incurred for the better protection and preservation of the water supply under St. 1891, c. 114, and under all acts in amendment thereof, and finally to the principal of the water loan. Revised Ordinances of Fall River, 1904, c. 46, §§ 13,15. The cost of constructing the works was met by the issue of bonds as
Under this state of facts, on November 4,1907, the board of aldermen of Fall River, which constitutes its city council under § 6 of its charter as amended by St. 1903, c. 225, § 1, passed over the mayor’s veto the following ordinance:
“ Section 1. Section 13, of Chapter 46, of the Revised Ordinances is hereby amended by striking out all the words after ‘latter,’ in the third line of said section, and adding the words: ‘ in the general funds of the City of Fall River,’ so that the section shall read: ‘ Section 13. The money received by the city
“Section 2. Section 15 of Chapter 46, of the Revised Ordinances is hereby repealed, and in its place shall be inserted the following: ' Section 15. First: Specific sums shall be appropriated by the City Council for the necessary repairs, extensions and improvement of the waterworks system, also for operating and managing, for the payment of officers, agents, clerks and assistants of the Watuppa water board. Said appropriations shall be voted after full and detailed estimates have been submitted to the finance committee by the Watuppa water board, and recommended by that committee to the city council.
“ ‘ Second. Payments of interest on the water loan, payments on account of sinking fund of said loan, and all payments of principal of said loan, shall follow the usual course of other city indebtedness.
“ ‘ Third. The cost and expenses incurred under chapter one hundred and fourteen of the Acts of the year eighteen hundred and ninety-one shall be paid by special appropriations of the city council after such expenditures shall have had the approval of said city council, to which body they must have been recommended by the committee on finance.’
“ Section 3. This ordinance shall take effect upon its passage.”
On December 2, 1907, the board of aldermen passed over the mayor’s veto an order making certain appropriations and authorizing the city treasurer to transfer to the general revenue account of the city $59,000 of the amount (which was then nearly $90,000) then credited to the account of the waterworks department, and directing that the same be appropriated to various purposes mentioned in the order.
The treasurer, the auditor and the mayor of Fall River contend that the ordinance of November 4, 1907, and the order of December 2, 1907, are invalid and illegal, and they decline and refuse to recognize them or to act according to their provisions; and the first of the cases before us is a petition brought by the majority of the aldermen, individually and as a board, for a mandamus to command the treasurer, the auditor and the mayor to recognize the validity of the ordinance and of the order, and
The first question to be considered arises on the language of St. 1871, c. 133. By § 15 of this act the city of Fall River is authorized to issue “ scrip, notes or certificates of debt to be denominated on the face thereof ‘ water bonds of the city of Fall River,’ to an amount not exceeding five hundred thousand dollars ”; and it is provided by § 17 that “ the city council shall from time to time regulate the price or rent for the use of the water, with a view to the payment from the net income and receipts, [of] not only the interest, but ultimately the principal of said debt so contracted, so far as the same may be practicable and reasonable.” The respondents claim that this is a legislative requirement that the receipts from water rates shall be applied to pay the interest and principal of the water debt; that these net receipts are thereby constituted a trust fund for the benefit and security of the holders of the bonds authorized by that act and the acts supplementary thereto; and that the ordinance of November 4, 1907, is invalid as being in contravention of this legislative provision. But we do not think so. When the Legislature has chosen to impose in a water act a requirement of this nature, it has not left its meaning to conjecture. For example, in the act for the supply of water to the city of Boston, after authorizing the city council to regulate the price or rent for the use of the water, the act expressly provides that the net surplus income “ shall be set apart as a sinking fund, and shall be appropriated for and towards the payment of the principal and interest ” of the water debt, “ and shall ... be applied solely ” to that purpose until the water debt should be fully paid. St. 1846, c. 167, § 11. And provision was made in §§ 12 and 13 for an increase in the water rates if they should be insufficient for this purpose, and for their reduction if they yielded a greater amount than was needed. Minot v. Boston, 142 Mass. 274. The careful omission in the act of 1871 of anything corresponding to this provision must be presumed to have been intentional. In view of this omission and of the fact that the bonds authorized by this act were to be the direct obligations of the city, and of the fact that, before the passage of this act, this court, in Attorney Greneral v. Salem, 103 Mass. 138, and in Carlton v. Salem,
The other objections taken by the respondents to the validity of the new ordinance and order may be more briefly considered.
The ordinance does not create any disproportionate burden of taxation. Those who take water from the city’s works do so voluntarily, and agree thereby to pay the rates as fixed from time to time by the city council. It is not necessarily to be regretted if the net income from the water rates shall be found temporarily to yield some profit over the expenses of maintaining them and providing for the cost of their construction. The provision in St. 1902, c. 393, § 23, cl. 15, that the water department of the city shall be under the charge of the Watuppa water board, does not of course take away the power of the city council to make appropriations for the expenses and dispose of the net income from the waterworks.
Nor do we see any reason to doubt the power of a city, acting through its proper authorities, to provide for the management of its own internal affairs by providing that a finance committee or other officials shall submit detailed estimates of intended expenditures and shall make recommendations in reference thereto to the city council before the making of appropriations by the latter body; nor is it necessarily unlawful for a city council to provide by rule or ordinance that such expenses as are referred to in the third clause of § 15 of c. 46, of the Revised Ordinances, as amended by § 2 of the ordinance in question, shall be recom
It is not necessary to consider in detail the other objections taken to the ordinance and the order in question. Both the ordinance and the order are valid and binding.
And we are of opinion that the duty of the respondents to recognize the validity of this ordinance and order may be enforced by mandamus. It is a public duty, in which all citizens have an interest. No remedy in the name of the city is available, because the respondents include the chief executive officer of the city and have been acting under the advice of the city solicitor. Mandamus has been maintained in our courts under somewhat similar circumstances at the suit of a board or the members of a public body. It was assumed that this could be done in Alger v. Seaver, 138 Mass. 331. The petitioners come to the court as individuals as well as in their character of a majority of the board of aldermen. Doty v. Lyman, 166 Mass. 318. Draper v. Mayor of Fall River, 185 Mass. 142. “ There is a great weight of American authority in favor of the doctrine that any private person may move without the intervention of the Attorney General for a writ of mandamus to enforce the performance of a public duty not due to the government as such.” Attorney General v. Boston, 123 Mass. 460, 469, and cases there cited. Welch v. Swasey, 193 Mass. 364, 377.
The petitioners are entitled to a writ of mandamus as prayed for.
The result is that the prayer of the petition for mandamus must be granted, and a decree entered for the plaintiffs on the bill in equity.
So ordered.