272 Mass. 116 | Mass. | 1930
This is a bill in equity by ten taxpayers of Holyoke to restrain the mayor and other city officials from incurring obligations and expending money of the city for purposes alleged to be contrary to law. The case was heard upon bill and demurrer. An interlocutory decree •was entered sustaining the demurrer, and the case was reported for determination by this court. Summarily stated, the material allegations of the bill are these: The gas and electric department of Holyoke was established and is maintained and regulated by the relevant provisions of G. L. c. 164 and by St. 1922, c. 173. By the latter chapter an unpaid commission of three is vested with all the powers and duties theretofore exercised by the mayor under G. L. c. 164, and in addition with the powers and duties conferred upon municipal light boards in towns by said c. 164. The affairs, doings and conduct of the gas and electric department are under the law subject to examination and audit by the city.auditor, by the director of accounts of the Com
For the purposes of this decision the facts thus alleged must be taken as true.
The cities and towns of this Commonwealth have no inherent but only a delegated power to raise and expend money. Their rights in this particular rest upon legislative grant; if the authority is not found in express terms or by necessary implication in some act of the General Court, it does not exist. The numerous authorities to this effect need not be collected. It is the doctrine of the early, the late, and many intervening decisions. Stetson v. Kempton, 13 Mass. 272. Attorney General v. Lowell, 246 Mass. 312, 320 and cases cited.
The right to erect, maintain and operate gas and elec
It is in the light of this statutory background that the allegations of paragraph 5 of the bill, already quoted in substance, must be read. Those allegations are specific to the effect that there is no just reason for undertaking the proposed investigation. This averment must be taken to be true. Since the proposed investigation involves the expenditure of considerable sums of public money, the allegation is pertinent. It must appear expressly or by fair implication that such expenditure is for a public use before it can be justified. The allegations of the bill negative any public use to be subserved by the proposed appropriation. The provisions of said c. 164, to which the defendants direct attention, such as §§ 38, 40, 41, 61, 62, 64, have not been overlooked. The general presumption in favor of the good motives of public officers is recognized. It is not necessary to consider the nature and extent of the general power of a legislative branch of a city government to investigate upon sufficient ground one of the city departments and to appropriate money therefor. It is only necessary to decide the narrow question presented on this record. We are of opinion that upon the allegations of this bill the demurrer ought to be overruled. The entry must be, order sustaining demurrer reversed and order to be entered overruling demurrer.
Ordered accordingly.