Foote v. City of Salem , 96 Mass. 87 ( 1867 )

Bigelow, C. J.

In the absence of any clear and explicit limitation, either express or implied, on the right of the city to expend money in the construction of works necessary to procure an adequate supply of water for the inhabitants, it must be held that the legislature intended to authorize an expenditure sufficient in amount to carry into effect the power granted in a reasonable and proper manner. This conclusion is the necessary result of the rule of interpretation, that the grant of a ge ieral power or authority carries with it the right to do everything that is necessary or fairly incidental to the due execution of the trust delegated.

A careful analysis of the provisions of the act of the legislature, Si. 1864, c. 268, under which the defendants have acted and are proceeding to act in relation to the matters set forth in the bill, fails to satisfy us that there was any intention on the part of the legislature to restrict the city to any fixed and definite sum in their expenditures for the construction of the works which the act authorizes them to build. There is no such restriction in express terms. This is conceded by the plaintiffs. Nor can we see that there is any by necessary implication. The only ground on which it is contended that the amount of expenditure is limited to a fixed sum is, that by § 12 of the act the city is authorized to issue scrip or bonds to “ an amount not exceeding in the whole the sum of five hundred thousand dollars,” for the purpose of obtaining a loan to defray the cost which may be incurred in executing the powers conferred by the statute. But it seems to us that the inference sought to be drawn from this provision is not reasonable or legitimate. It is a restriction on the authority of the city to create a permanent debt, payable at a distant period of time, for the purposes enumerated, but not a limitation on their powers to raise money by taxation or temporary loans, in order to carry forward and execute the works which, by the previous provisions of the act, they were in the broadest terms empowered to construct. This interpretation gives full effect and operation to the language in which the twelfth section is expressed, while it avoids a conclusion, otherwise inevitable,. which might defeat the whole scope and purpose of the act. If construed as an absolute condition or limitation on the authority of the city, no steps could be safely taken to execute the authority conferred, unless it had been previously ascertained that the expenditure to be incurred would not exceed the prescribed sum. But it is obvious that this would be clearly impracticable in relation to an enterprise of the character contemplated by the statute. As applied to the subject matter, such a construction would be manifestly unreasonable. Upon these grounds, we think that the claims of the petitioners to relief founded on an alleged limitation on the authority of the city to expend a greater sum than five hundred thousand dollars cannot be supported.

Equally untenable is the position that the city have exceeded their authority in issuing bonds payable in coin, as is alleged in the bill. Whatever doubt may have existed as to such right under the terms of the original act, full power to enter into contracts for payment in gold is conferred on the city by St. 1866, c. 258. It was clearly competent for the legislature to grant such power, and to give validity to contracts into which the city had entered without the requisite legislative authority. No legal or constitutional right, either public or private, was violated by such enactment.

Nor do the allegations in the bill set forth any illegal or erroneous action by the city under the provisions of the act. The facts stated do not warrant any inference that money has been borrowed at usurious rates, or that any improper or unlawful use has been made of the bonds or of funds belonging to the city. Bill dismissed,