Pearsons v. Ranlett , 110 Mass. 118 ( 1872 )

Morton, J.

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 years, and that they shall receive such “ compensation as the said town by vote may prescribe, and a majority of said commissioners shall be a quorum for the exercise of the powers and duties prescribed by this act.”

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.”

The parts of the act we have referred to show that the general scheme and purpose of the act was to place the administration of the affairs connected with the supply of water in the hands of a new and independent board of officers, and not in the hands of those who administer the ordinary affairs of the town; and the votes passed indicate that the town accepted the act with the same view of its effect.

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 the treasurer upon the board of commissioners. If the purpose had been to vest in him greater powers than the other commissioners have, or to impose upon him special duties and responsibilities, we think it would have been so provided in the statute.

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.