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Stearns v. Washburn, 7 Gray, 187 266 Ward v. Jenkins, 10 Met. 583 105 Steele v. Burkhardt, 104 Mass. 59 469 Warner v. Bacon, 8 Gray, 397 339 Sterling ». Rogers, 25 Wend. 658 273 Warren v. Ferdinand, 9 Allen, 357 406 Stetson v. Kempton, 13 Mass. 272 3

v. Nichols, 6 Met. 261

268 Stevens v. Reeves, 9 Pick. 198 355 | Warring v. Williams, 8 Pick. 322 467 Stockwell v. Silloway, 100 Mass. 287 397 Washburn v. Cudding, 8 Gray, 430 476 103 Mass. 517 397

v. Merrills, 1 Day, 139 174 Stone v. Boston, 2 Met. 220

214 Waterman r. Johpson, 13 l'ick. 261 435 Stoops v. Smith, 100 Mass. 63 435 Waters v. Stickney, 12 Allen, 1 27! Stratton v. Commonwealth, 10 Met. Wearse v. Peirce, 24 Pick. 141 274 217 213 Weld v. Oliver, 21 Pick. 559

360 Btrong v. Doyle, 110 Mass. 92 384 Wellcome v. People's Ins. Co. 2 Gray, Sullivan v. Adams, 3 Gray, 476 403 480

59 v. Fitzgerald, 12 Allen, 482 93 West v. Old Colony Ins. Co. 9 Allen, Swan v. Middlesex, 101 Mass. 173 476 316

327 v. Tappan, 5 Cush. 104 381 Weston, ex parte, 11 Mass. 417 212 Swasey v. Little, 7 Pick. 296 113 Wetherbee v. Johnson, 14 Mass. 412 341 Sweeny v. Old Colony & Newport Wheeler v. Worcester, 10 Allen, 591 339 Railroad, 10 Allen, 368 487 Wheelwright v. Freeman, 12 Met. 154

541 Taunton Iron Co. r. Richmond, 8 Met.

v. Wheelwright, 2 Mass. 447 173 434

330 Whelan v. Sullivan, 102 Mass. 204 21 Thayer v. Felt, 4 Pick. 354

59 White v. Crawford, 10 Mass. 183 231 v. Mann, 19 Pick. 535

274 - v. Foster, 102 Mass. 375 435 Thompson v. Hoskins, 11 Mass. 419 93 Whiting v. Mayor & Aldermen of Bosv. Lapworth, L. R. 3 C. P. 149

ton, 106 Mass. 89

556 189

v. Smith, 13 Pick. 364 241 Traders' Ins. Co. v. Stone, 9 Allen, 483 Whitney v. Dutch, 14 Mass. 457 404

146 Whit:en v. Whitten, 3 Cush. 191 179 Troy v. Cheshire Railroad, 3 Foster, Whitwell v. Willard, 1 Met. 216 328 83 339 Wilder v. Cowles, 100 Mass. 487

32 Tucker v. Boston, 18 Pick. 162 164 Wilkinson v. Libby, 1 Allen, 375 87 Tufts v. Plymouth Gold Mining Co. Willard 2. Eastham, 15 Gray, 328 276 14 Allen, 407

497

v. Newburyport, 12 Pick. 227 5 Turley v. North American Ins. Co. 25

v. Presbury, 14 Wall. 676 555 Wend. 374

52 Williams v. Cheney, 3 Gray, 215 523 Tuttle v. Tuttle, 12 Met. 551 443 Willis v. Crooker, i Pick. 201

181

Winnisimmet Co. v. Chelsea, 6 Cush. Underwood v. Carney, 1 Cush. 285 232 477

223

Winship v. Neale, 10 Gray, 382 476 Vandine v. Burpee, 13 Met. 288 476 | Wood v. Denny, 7 Gray, 540

181 Vannevar v. Bryant, 21 Wall. 41 340, n. 2. Washburn, 2 Pick. 24 466 Vermont & Massachusetts Railroad v.

v. Worsley, 2 H. Bl. 574 51 Fitchburg Railroad, 14 Allen, 462 141 Woodbury v. Obear, 7 Gray, 467 271, Verry v. Small, 16 Gray, 121 406

475 Vincen: v. Nantucket, i 2 Cush. 103 5 Woolev v. Groton, 2 Cush. 305 17 Vinton v. King, 4 Allen, 562 274 Worsley'v. Wood, 6 T. R. 710 51 Voorhees, in re, 3 Vroom, 141 411 Wright v. Boston, 9 Cush. 233

557

r. Tukey, 3 Cush. 290 349 Wager v. Hall, 16 Wall. 584

107 Walbrun r. Babbitt, 16 Wall. 577 107 Yale v. Dederer, 18 N. Y. 265 277 Walker v. Fitts, 24 Pick. 191

360

22 N. Y. 450 277 - v. Orange, 16 Gray, 193 308

v. Wheelock, 109 Mass. 502 467 v Walker, 2 Atk. 98

York & Midland Railroad v. Hudson, Wann v Western Union Telegraph 16 Beav. 485

196 Co. 37 Miaso. 479

74 | Young v. Makepeace, 103 Mass. 54 63

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174

CIVIL CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

AT THE

MARCH SESSION 1873. IN BOSTON.

[CONTINUED FROM Vol. CXI.]

PRESENT :

Hox. REUBEN A. CHAPMAN, CHIEF JUSTICE.
Hox. HORACE GRAY, JR.,
Hon. JOHN WELLS,
Hox. SETH AMES,

JUSTICES.
Hon. MARCUS MORTON,
Hon. WILLIAM C. ENDICOTT,

MEMORANDUM.

In accordance with the St. of 1873, c. 40, providing that “thie number of Associate Justices of the Supreme Judicial Court shall be six instead of five,” WILLIAM C. ENDICOTT, Esquire, of Salem was appointed a justice of this court on the fifth day of March, 1873, and took his seat upon the bench on the eleventh day of the same month.

NORFOLK COUNTY.

WILLIAM MINOT, JR. & others vs. INHABITANTS OF WEST

ROXBURY.

A town cannot raise by taxation or by pledge of its credit, or pay from its treasury, money

for the expenses of a committee directed by a vote of the town to petition the legislature for the annexation of the town to another town. VOL. XVI.

1

Minot v. West Roxbury.

PETITION of ten persons representing that they were all taxable inhabitants of the town of West Roxbury; that on the 18th of November, 1872, a town meeting of the town was held in pursuance of a warrant issued by the selectmen therefor, which warrant contained, among others, the following article • “ To see if the town will appoint a committee to petition the legislature, at its next session, for the passage of an act authorizing the annexation of the town of West Roxbury to the city of Boston, and to make an appropriation therefor."

That this article came up for consideration in the course of the meeting, and thereupon the following votes were separately passed by a majority of the voters then present: “ Voted,” that certain persons who were named “be, and they are hereby appointed a committee to petition the legislature, at its next session, for the passage of an act authorizing the annexation of the town of West Roxbury to the city of Boston, and said committee are hereby authorized to appear, with counsel, before any committee of the legislature to whom said petition may be referred, and favor the granting of said petition.”

Voted, that for the purpose above named, the sum of $5000 is hereby appropriated, and the treasurer, under the direction of the selectmen, is hereby authorized to borrow the same.”

The petition then alleged that the petitioners had no accurate or exact information as to the action of this committee, or what, if any steps had been taken by it under the votes, or whether the sum of $5000 pretended to be appropriated, or any part of it, bad beei rrised by pledging the credit of the town, or otherwise, but that they were informed and believed that none of it had been paid out by said town or by its treasurer ; that they were informed and believed that the treasurer of the town deemed himself bound by these votes, and authorized to act under them, and intended and was preparing to pay out of the town treasury the whole or a part of the sum voted.

The petition then averred that the votes were illegal; that the town had no legal right to raise, appropriate or pay over money for the objects named in the votes, and prayed that the treasurer of the town be enjoined from taking any action under the votes.

Minot o. West Roxbury.

To this petition the defendant demurred because the petitioners had not stated a case wb entitled them to

any

relief. The case was heard and reserved by Chapman, C. J., for the consideration and decision of the full court, on bill and demurrer.

G. 0. Shattuck f R. M. Morse, Jr., for the defendants.
R. Olney f W. Minot, 3d, for the petitioners.

ENDICOTT, J. The single question, presented for decision in this case, is whether a town has the legal right and power to raise by taxation or pledge of its credit, or to pay from its treasury any money for the expenses of a committee directed by a vote of the town to petition the legislature for the annexation of the town to the city of Boston, and to appear with counsel to advocate the annexation.

It is well settled by our decisions, that towns derive all their authority to tax their inhabitants from the statutes; if the authority to tax for a particular purpose is not found there, either in express terms or by necessary implication, it does not exist. If it is to be found, the action of the town in such case is binding and conclusive; and whether the town acted wisely and with proper discretion is not a subject of investigation or revision by this court. It is not necessary to cite all the authorities to this proposition; the earliest and the latest cases lay down this rule. Stetson v. Kempton, 13 Mass. 272. Friend v. Gilbert, 108 Mass. 408. Higginson v. Nahant, 11 Allen, 530.

It is not contended by the defendants that the power to tax its inhabitants for such a purpose is specifically given or comes within any of the objects enumerated in the statutes for which towns have authority to raise money. But it is argued, that the annexation of a town to a city is a matter nearly affecting the rights of a town, that it relates to and involves questions of municipal concern, that a town has a right to petition the legislature for such a purpose, and that the expenses attending such application fall properly within the final clause of that section of the statute authorizing towns to raise money" for all necessary charges arising therein." Gen. St. c. 18, § 10.

Minot o. West Roxbury.

“ Necessary charges are not confined to the objects specifically enumerated in § 10, but must include the necessary charges arising from the exercise of any power conferred, or duty imposed on towns by other provisions of the General Statutes or subsequent statutes. This case not being provided for in the statutes, it becomes necessary to consider, whether the power to tax for this purpose, as for a necessary charge arising within the town, can be inferred or deduced from any power given or duty imposed on towns, or can be said to come within the general scope of the objects and purposes for which towns are incorpo rated.

This clause has received judicial interpretation in a series of well considered cases. The leading case is Stetson v. Kempton, supra. The meaning of the word “ necessary" in the statute is discussed at length by Chief Justice Parker, with a fulness of illustration in regard to the various expenses which may be said to fall within the words “ necessary charges,” that seems to exhaust the subject, and has not been materially enlarged by later decisions. He says: “ The phrase "necessary charges’ is indeed general ; but the very generality of the expression shows that it must have a reasonable limitation. For none will suppose that under this form of expression every tax would be legal which the town should choose to sanction. The proper construction of the term must be that in addition to the money to be raised for the poor, schools, &c., towns might raise such sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to empioy, the support and defence of such actions as they might be parties to, and the expenses they would incur in performing such duties as the laws imposed, as the erection of powder houses, providing ammunition, making and repairing highways and town roads, and other things of a like nature, which are necessary charges because the effect of a legal discharge of their corporate duty. The erection of public buildings for the accommodation of the inliabitants, such as town houses to assemble in, and market houses for the sale of provisions, may also be a proper town charge, and may come within the fair meaning of the term necessary; for these

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