Pope v. Inhabitants of Halifax

66 Mass. 410

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1853
• Status: Published

Opinion

A town having voted to loan its portion of the surplus revenue received under St. 1837, o. 85, “ to the inhabitants of the town, as the population of the town was, on the head and the heads of families, to give their securities for themselves and minor children, guardians for children they are guardians for, and the selectmen for town paupers, and.that the trustees of the surplus revenue in behalf of the town accept the securities of minor children, who have no parents or guardians ; ” and having, at a subsequent meeting, voted that “ the trustees of the surplus revenue loan the same in equal sums to each and every inhabitant of the town, and that each inhabitant give two sureties which should be acceptable to the trustees; that the loan be made according to a census to be taken, and also having voted that the trustees need not require one of the sureties to be a freeholder: " Held, that such votes were in violation of the act concerning the deposit of the surplus revenue passed March 24, 1837, and were illegal and void; and that compliance with such votes on the part of the trustees should be prohibited by injunction.

The taxable costs of the complainants, in a bill for enjoining such distribution of the town's portion of the surplus revenue, ordered to he paid by the defendants out of said surplus revenue fund.

The bill further averred that on the 3d day of May, 1852, the inhabitants of said town of Halifax voted “ that the trustees be authorized to collect in the surplus revenue (loaned out as above stated) by the 1st of September, 1852, and to loan it to the inhabitants of the town, as the population now is, on the head and the heads of families, to give their securities for themselves and minor children, guardians for children they are guardians for, and the selectmen for town paupers to the trustees; that the trustees accept the securities of minor children in behalf of the town who have no parents or guardians.” The bill also alleged that the individual respondents intended to loan out and distribute said fund in pursuance of said vote, and contrary to the trusts upon which the town received the same; whereby a large part would be lost, and the complainants and other responsible inhabitants of said town would be compelled to repay the same to the commonwealth ; and prayed for relief by injunction, and for other proper decrees for enforcing and regulating the execution of the trusts under which said fund was received by the town.

A temporary injunction was granted, May 13,1852, and on the 5th of July, 1852, the respondents filed their answer, substantially admitting the facts alleged in the bill, but denying any misappropriation of the fund, and relying upon the right of the town to act as they had done in the premises. The case was argued in Boston in January, 1853, by E. Ames, for the complainants, and T. G. Coffin, for the respondents, and continued for advisement.

“ This cause came on to be heard at the present term of this court upon the pleadings and proofs; and upon full consideration thereof, it is now ordered, adjudged, and decreed that the votes passed on the third day of May, 1852, and on the fourth day of April, 1853, by the inhabitants of the town of Halifax, as set out in the original and supplemental bills, and admitted by the answers of the respondents, are contrary to, and in violation of the provisions of the act entitled an act concerning the deposit of the surplus revenue,’ passed on the 24th day of March, 1837, and are null and void and of no effect to all intents and purposes whatsoever.

“ And it is further ordered, adjudged, and decreed that the two injunctions heretofore granted in this case, the first bearing date May 13,1852, and the second bearing date May 10, 1853, for the stay of the respondents, and each and all of them from collecting, receiving, distributing, and loaning said surplus revenue or any part thereof, as more particularly set out in said writs of injunction, duly served, returned, and on file in this case, be, and the same are hereby made perpetual.

“ And it is further ordered and decreed, that the complainants be paid their taxable costs of this suit out of the fund of the surplus revenue of - said .town of Halifax, and that the clerk do issue to the complainants in this case an execution against the respondents Washburn, Inglee, and Peasley, for said taxable costs, inserting in such execution an order that said costs be paid to the complainants out of the said surplus revenue fund of said town of Halifax.”