Weymouth & Braintree Fire District v. County Commissioners

Chapman, C. J.

The petitioners were incorporated as a fire district, in Weymouth and Braintree, by the St. of 1846, c. 118, and were duly organized and have for many years acted as such fire district. . The St. of 1868, e. 346, provides that fire districts formed of portions of more than one town may be dissolved in the manner therein stated. The petitioners contend that the latter act, if applicable to them, is unconstitutional, inoperative and void. But under the act first mentioned, the district became a municipal corporation, with limited powers, for a special purpose. There can be no doubt that the power to create, change and destroy municipal corporations is in the legislature. This power has been so long and so frequently exercised upon counties, towns and school districts, in dividing them, altering their boundary lines, increasing and diminishing their powers, and in abolishing some of them, that no authorities need be cited on this point. The Constitution does not establish these corporations, but vests in the legislature a general jurisdiction over the subject by its grant of power to make wholesome laws as it shall judge to be for the general good and welfare of the Commonwealth. These are not like private corporations, having chartered rights which are in the nature of contracts and cannot be altered without the consent of the grantees unless a right to do go is reserved. But the legislature may amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, and abolish them altogether, at its own discretion. Cooley on Constitutional Limitations, 192.

On January 25, 1869, the inhabitants of that portion of the district residing in Braintree voted to withdraw from the district under the provisions of the fifth section of the St. of 1868, and presented a petition to the county commissioners on January 12, 1871, being an adjournment of their December term, for a hearing of the parties, an apportionment of their debt, and a division of their property. It is contended that this petition was filed too late, and could not be valid unless filed within ten days after the vote to withdraw, which vote was passed January 25,1869. The petitioners contend that the limitation of ten days, in the fourth section of the act, applies to this proceeding. But the language of the fourth section will not bear such an interpretation. It relates to another renter. The fifth section fails to prescribe any time of limitation; and it does not appear that there was any unreasonable delay in the proceedings before the county commissioners.

The petitioners further contend that the petition to the county commissioners is not signed by the committee which was appointed at the meeting held January 25, 1869. But it appears to be signed by a majority of that committee, and the acts of a majority of such committee are valid. Sprague v. Bailey, 19 Pick. 436. Williams v. Sehool District in Lunenburg, 21 Pick. 75. There are other signatures to the petition, but they do not viti ate it.

The petitioners further contend that the St. of 1869, c. 417,^* which repeals the St. of 1868, c. 346, terminated the right of the respondents to apply to the county commissioners. On the contrary, we think it expressly reserves their rights; they having already voted to withdraw, and not having abandoned their rights by loches or otherwise.

The petitioners further contend that the bill in equity, which is alleged to have been pending, was a bar to the proceedings before the county commissioners. But the proceedings before the commissioners were of a very different character from the suit in equity. The object of the bill was to procure an injunction against the assessment of taxes ; the object of the proceeding before the county commissioners was to procure the exercise of certain powers which the statute conferred on the commissioners as to the division of the common property and the apportionment of the debt.

The petitioners contend that the inhabitants of the Braintree portion of the district cannot organize a fire district, nor divide the property pro rata among themselves, nor otherwise properly use the property decreed to them by the county commissioners. This position mistakes the purport of the fifth section of the St. of 1868, o. 346. The withdrawing portion acts in a corporate capacity, and the provisions of the statute cannot be carried out without regarding that portion as a corporation. The voters and committee act as members of it; the county commissioners must treat it as such ; its portion of the property must be held in that capacity, and its portion of the indebtedness must be assessed and paid as such. Thus construed, the provisions of the statute are simple and intelligible; but they would not be so otherwise.

The award is objected to as bad. But the powers of the county commissioners in making it are very broad. If they make a division which is in substance equitable, they comply with the statute. The property to be divided was of such a character that it could not be divided equally. In such a case equity requires that equality shall be attained by the payment of money. Their property consisted of personal estate. But even in the partition of real estate, equality may be attained by the payment of money. Gen. Sts. c. 136, § 56. There is no right of trial by jury in making such a partition. And the Braintree portion of the dis* tricfc, which is to pay the money, is not the complaining party. We think the proceedings have been legal, and the

jPetition must he dismissed.

* “ Chapter three hundred and forty-six of the acts of the year eighteen hundred and sixty-eight, entitled an act to provide for the dissolution or dismemberment of fire districts in certain cases, is hereby repealed; provided, however, that such repeal shall not affect any proceedings already commenced under said act, nor shall any portion of a fire district, which has already voted to withdraw from such district, be deprived thereby of any rights or remedies to which they would have been otherwise entitled under said act.”