Copeland v. Inhabitants of Huntington

99 Mass. 525

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Foster, J.

No one will contend that towns in this Commonwealth possess any power not conferred by express legislation to reimburse money paid by individuals for recruiting purposes during the war to suppress the rebellion. It was permitted to be done by the St. of 1865, c. 152,

* which became a law April 25, 1865. But this act was in terms repealed by the St. of 1866, c. 70,* which took effect March 12,1866. The only saving clause is found in the second section of the last act, providing that the repeal “ shall not affect proceedings already begun in any city or town for reimbursement” under the first statute.

We are now called upon to construe' this saving clause, and to determine what are to be deemed to be proceedings begun for reimbursement while the statute of 1865 was in force. The power conferred by this statute was qualified and conditional. The money might be raised by taxation or otherwise; but only, provided that all sums raised under the act should be assessed and paid within three years from its passage.

In our opinion, there must have been either the borrowing of money, or the creating of a legal debt against the town, or a vote sufficient to warrant the assessors in proceeding to lay a tax to raise money for the purpose of reimbursement. We think nothing less can be fairly held to be a commencement of proceedings for reimbursement sufficient to prevent the operation of the repealing act. A mere vote to reimburse, without any such steps as place the town under a legal obligation to do so, is insufficient, unless money is raised or borrowed, creating a fund for the purpose, or at least an assessment is voted. Without some such decisive action, the whole matter remained executory, and liable to reconsideration; and any preliminary and inchoate measures which a town may have adopted were swept away by the repealing act.

To apply the foregoing rule to the facts in the two cases now before us, we find that the town of Huntington passed a vote to reimburse, and directed the selectmen to give orders on the town treasurer in favor of the contributors to the recruiting fund, which orders were payable in two years without interest. But these orders created no debt against the town. If negotiable in form, their nature was apparent on their face, and every holder had notice of their legal character. There was no mode by which any person could enforce them against the town at law or in equity. As this was all that had been done when the repealing act took effect, we are of opinion that it was not subsequently competent for the town to proceed to raise or pay out money under the votes.

The town of Granby in November 1865 passed a vote to raise money to refund to individuals their contributions; but specified no sum, and voted no assessment of a tax. Everything remained in fieri at the date of the repealing act.

In neither case had enough taken place to bring the proceedings within the saving clause. Neither town had raised any money, or assessed or voted, so that its assessors could proceed to lay, any tax; nor had either town contracted any debt or binding obligation under the St. of 1865, when it was repealed.

We do not regard the delay in filing either of these petitions as amounting to loches, or barring the rights of the petitioners. The remedy given by the Gen. Sts. c. 18, § 79, on the application of ten taxable inhabitants, need not be resorted to till money is about to be paid illegally out of the town treasury. It is the improper expenditure of the money which does the principal injury. Decrees for the petitioners.

“ § 1. Any town or city may raise, by taxation or otherwise, such sums of money as may be necessary to pay and refund any money which has already been paid and applied by such city or town, or contributed by individuals, in aid of and for the purpose of filling its quotas, or furnishing men for the present war, under any requisition, order or call of the President or of the war department of the United States during the year eighteen hundred and sixty-four : provided, that all sums raised under this act shall be assessed and paid within three years from its passage.”

“ § 1. Chapter one hundred and fifty-two of the acts of the year eighteen hundred and sixty-five is hereby repealed. § 2. This act shall not affect proeedings already begun in any city or town for reimbursement under said act."