Minot v. West Roxbury. may be essential to the comfort and convenience of the citizens. With respect to the defence of any town against the incursions of an enemy in time of war, it is difficult to see any principle upon which that can become a necessary town charge. It is not a corporate duty," &c. In another case in the same volume, Rumford School District v. Wood, 13 Mass. 193, the chief justice Baid of towns that they may be considered as quasi corporations, with limited powers coextensive with the duties imposed on them by statute or usages. The rule of construction laid down in these early cases has been strictly followed in the later decisions. In Parsons v. Goshen, 11 Pick. 396, Mr. Justice Wilde says, "The important question in this case is settled, and upon principles that cannot be controverted, in Stetson v. Kempton." In Anthony v. Adams, 1 Met. 284, Chief Justice Shaw said: "It is now well settled that a town in its corporate capacity will not be bound, even by an express vote of a majority, to the performance of contracts or other legal duties not coming within the scope of the objects and purposes for which they are incorporated." In Vincent v. Nantucket, 12 Cush. 103, it was said by Mr. Justice Merrick, "Their contracts will be valid when made in relation to objects concerning which they have a duty to perform, an interest to protect, or a right to defend. But here is the extent at once of their right and their power. They cannot engage in enterprises foreign to the purposes for which they were incorporated, nor assume responsibilities which involve undertakings not within the compass of their corporate powers." Following this rule of construction, this court has held expenditures to be legal, though not within the express terms of the statutes, but incidental to and within the scope of the powers of a town; as for the erection of market and town houses, and the construction of reservoirs to supply fire engines; Spaulding v. Lowell, 23 Pick. 71; French v. Quincy, 3 Allen, 9; Hardy v. Waltham, 3 Met. 163; for the support of a public clock, as within the jurisdiction of a town in the same manner as hay scales, burying grounds, wells and reservoirs, being objects of convenience and necessity to the inhabitants. Willard v. Newburyport, 12 Pick 227. A town may also indemnify its officers against Minot v. West Roxbury. liabilitios incurred in the bonâ fide discharge of their official duties, as in regard to the reassessment of taxes, the repairs of a highway, the report of a school committee, the erection of a town house, all incidental to and connected with the exercise of the powers of a town; Nelson v. Milford, 7 Pick. 18; Bancroft v. Lynnfield, 18 Pick. 568; Fuller v. Groton, 11 Gray, 340; Hadsell v. Hancock, 3 Gray, 526; Babbitt v. Savoy, 3 Cush. 530; and may pay for professional services in the defence of suits, independent of the result of the suit, and whether the town acted legally or illegally in the matter in controversy, it being in the ordinary administration of town affairs. Cushing v. Stoughton, 6 Cush. 389. It is not important to cite the numerous cases in which votes of towns have been declared illegal and void by this court, as none of them turn on the special construction of these words in the statute, or in any way modify or change the rule of construction previously stated. We are therefore brought directly to the question whether this vote of the town of West Roxbury was an abuse of legal right and power. Upon a review of the authorities, and upon principle, it is very clear, that towns, deriving all their power to raise money and tax their inhabitants from the statutes, must necessarily be confined in their expenditures of money, and the consequent power to tax their inhabitants therefor, to the objects and purposes named in the statutes, and to those other objects and purposes not named, but so connected with and incidental to the objects named, and so directly within the line of their corporate duty and power in the ordinary administrations of their affairs as towns, that they may be fairly presumed, by necessary implication, to be included in the words "other necessary charges." Such incidental power must spring from some power granted in terms, and relate to a subject matter set forth with distinctness in some portion of the statutes, and which is in some way necessary for the town to do in carrying out and performing its corporate duties, as an existing body politic. Else it has no power to tax its inhabitants, for the principle of a tax is that it is necessary by reason of a public duty in the town to do something in obedience to and imposed by public law. Minot v. West Roxbury. It is difficult, therefore, to see how annexation to another municipal corporation, involving the merger of its organization in another, and the abrogation of all the functions and duties to perform which it was created, can be a matter within the scope of its powers, or incidental to any of its legal duties, or in regard to which, or for the promotion of which, it has any corporate duty to perform, incidental to any power conferred. It is not in defence of any municipal right, or in the performance of any municipal duty granted or imposed by law, or to protect any interest committed to its charge; it is simply an aggressive movement against its own existence. As it exists for a definite purpose, as a municipal corporation, its powers all lie within the sphere of its municipal duties. It was urged in argument that the annexation of a town to a city was a matter affecting the rights of a town, and was of municipal concern as affecting the roads, the poor, water supply, &c., and so the town could take action thereon. Because annexation may cause a change in the local administration of affairs, it does not follow that the town as a corporation can have any interest therein. The only action the town can take in regard to such matters of municipal concern is by dealing with them itself, not by thrusting them on other corporations, and taxing its citizens for the expenses thereby incurred. The people of a town may be interested in, and their municipal affairs may be affected by, the building of a railroad or the establishment of a manufacturing corporation within their town limits; but the town in its corporate capacity would have no right, without special legislative authority, to tax their inhabitants to promote such undertakings, whatever the advantage in local prosperity which would result. It was also argued that this vote might rest on the ground of usage. No such usage appears of which we can take notice. But usage could not sanction such an appropriation of money; for usage, to be binding, must be not only general, reasonable and long continued, but must also be a custom connected with the exercise of some corporate power or the enjoy. ment of some corporate right, or which contributes essentially to the convenience or necessities of the inhabitants. Hood v. Lynn, 1 Allen, 103, 106. De Witt v. Pierson. Nor does the want of power to tax the inhabitants of a town for such a purpose as is contemplated by this vote affect the right of petition; or impair or prevent the right of the people to assemble in an orderly manner to consult upon the public good, and to request of the legislative body by the way of petition a redress of wrongs done them and of the grievances they suffer. Declaration of Rights, art. 19. This the inhabitants of West Roxbury have the right to do, and to ask for any changes in the laws which they think necessary or desirable. But it does not follow that such action would be in the nature of corporate action by the town, or that it would necessarily involve the expenditure of money; and it certainly does not follow that it is a purpose for which the town can raise money in the absence of any statute provisions. We are therefore of opinion that the vote was an abuse of legal right and power, and the entry must be Demurrer overruled. SUFFOLK COUNTY. WILLIAM E. DE WITT vs. EDMUND PIERSON. The mere fact that the rooms beneath a tenant are occupied by a woman, also a te..ant of the same landlord, of notoriously bad character, who keeps in her apartments lewd women as lodgers, uses the rooms for purposes of prostitution, and receives there the visits of drunken men, does not constitute an eviction, although the noise and riot proceeding from the rooms attract crowds of boys around the spot, and the singing of bawdy songs by, and the loud talking of the women and their visitors, and the frequent inging of the door bell disturb the tenant and his wife, and although the tenant notifies the landlord of this state of affairs, and he promises to attend to it but does nothing. Neither under such circumstances is the tenant entitled to a diminution of rent. CONTRACT to recover eleven weeks rent for the use and occupation of a tenement, hired of the plaintiff by the defendant, and by him actually occupied from the second of March, 1870, to May 18th, 1870, at six dollars a week. At the trial in the Superior Court before Scudder, J., there was no denial by the defendant that he occupied the premises De Witt v. Pierson. during all the time sued for, nor of the correctness of the plaintiff's account, except as to the charge of rent for the first two weeks of the term, which he claimed had been paid, and which was allowed by the jury in their verdict. For the defence, it was shown that the premises, for the use of which rent was claimed, were two rooms situated in a house on Harrison Avenue, in the city of Boston; that during the entire portion of the term declared for, other rooms in the same house directly beneath those occupied by the defendant were leased by the plaintiff to one Mrs. Fletcher, whom one of the witnesses for the defence, formerly a policeman, testified was a person of notoriously bad character; that this woman introduced into the apartments hired by her two other women as lodgers, whom the same witness testified were notoriously of lewd character. One of the witnesses for the defence thought the apartments let to this person were used for the purpose of prostitution, and he testified that, on two occasions, drunken men were seen in their rooms; that the policeman on duty in that section of the city, on several occasions, drove away a crowd of boys who were attracted to the spot by the noise and riot proceeding from the rooms occupied by these women; and the defendant testified that the disturbance caused by the singing of bawdy songs, and the loud talking of the women and their visitors, and the frequent ringing of the door-bell, were a constant source of annoyance to the family of the defendant, which consisted of himself and his wife; that notice of the fact that the defendant was annoyed and disturbed by these things, and of the character of the house and of these women, was given on three several occasions during the term, to the plaintiff's agent, who promised to attend to it; that the defendant, whenever asked to pay his rent, refused to do so, unless these women were removed from the house; that the plaintiff took no notice of the request of the defendant, except to promise by his agent to get the women out, if it could be proved to him that they were of bad character, which the defendant undertook to do, if the agent would call at the house any evening, and named an evening; but the agent replied he had other business to attend to. No other notice than that above mentioned was given to the plaintiff |