Boston Water Power Co. v. Mayor & City Council

C. Allen, J. In Foster v. Park Commissioners, 133 Mass. 321, 334, the question was suggested, but it was unnecessary then to determine it, whether, if the city council should refuse or neglect to make sufficient appropriations for the construction of the park contemplated in the St. of 1875, c. 185, a writ of mandamus would issue to compel them to do so, as in the case of a neglect or refusal to construct a way lawfully laid out. That question is now directly presented for our decision. There is in the statute no provision which is in terms mandatory upon the city council, except in the first instance, where the appointment of park commissioners is made compulsory. The performance of the duties of the park commissioners is made subject to the provision, in § 3, “ that no land shall be taken, or other thing involving an expenditure of money done, until an appropriation, sufficient to cover the estimated expense thereof, shall have been made by a vote of two thirds of each branch of the city council.” And, in § 12, it is enacted that, for the purpose of defraying the expenses incurred under the provisions of the act, the city council shall have authority to issue, from time to time, and to an amount not exceeding the amount actually expended for the purchase or taking of lands for' said park, bonds or certificates of debt. There is thus an implied authority, in § 3, to make appropriations for improving the park, and, in § 12, there is an express authority to issue bonds to an amount not exceeding the amount actually expended for the purchase or taking of lands. But there is nothing mandatory, and this omission appears to have been intentional. It was the purpose of the statute to leave it to [554] the determination of the city council how fast to proceed. Independently of any consideration of the limit of municipal indebtedness fixed by law, it is a matter naturally and properly confided to the city council to weigh the relative importance of different public improvements and objects calling for large expenditures of money, and to determine how much shall be devoted to each in any year. In the case of ways, the duty of proceeding with «the construction of such as have been duly established is an absolute one, fixed by statute, and the court can enforce it accordingly. Pub. Sts. e. 49, § 60. Richards v. County Commissioners, 120 Mass. 401. The absence of any similar provision in the statute providing for the park is significant to show that no such compulsory action was contemplated. But it is urged upon us that the statute contemplates that the city council shall proceed with reasonable speed, and that an unreasonable delay is charged by the petition for a writ of mandamus, and admitted by the demurrer. The answer to this is, that under the statute the determination of the city council as to what is reasonable speed is final. Otherwise, upon a dispute whether the city council was proceeding with reasonable speed or not, this court would have to sit in judgment upon its discretion, and, in fact, to revise and superintend all its expenditures. There is no suggestion that the scheme has been abandoned by the city council. This result is especially clear, in view of the law, as it stood at the time the petition was brought, respecting the limit of municipal indebtedness. The petition avers that “ the debt limit, as provided by law, of the city of Boston, will in all probability be reached the present year, when your petitioners fear that the mayor and city council will then claim that they have no power or means to complete said park.” This is in effect an averment that probably the city council will use all available means at its disposal for objects deemed by it to be more pressing than the park; and there is no averment to the effect that such objects are not in fact more pressing, having reference to the public needs. But suppose there were such an averment; the petition still is in effect a request that the court will decide that the park is a more pressing object than the others to which the city council will probably devote the money. It cannot be [555] that the Legislature intended that this court should enter upon such an inquiry, and compel the city of Boston to administer its fiscal affairs under the direction of the court. It was suggested by the petitioners, that the paym'ent by them of the assessments levied upon them for betterments gives them a right to insist upon the speedy completion of the park. But it has never been determined, and it does not now appear, that these assessments were levied with reference to the condition of the park as it would be in the future. Moreover, if it were so, it must also be borne in mind that no rule or standard was prescribed by the statute as to the manner in which the park should be constructed, and no time was fixed within which it must be finished. The assessments, even though it be assumed that they were levied and paid under an expectation of the benefits to be derived from a completed park, do not give to the petitioners a legal right to supersede and control the discretion of the city council and park commissioners as to the time and manner of completing it. The supplemental petition sets out that, by virtue of the St. of 1886, c. 304, the city council may authorize its treasurer from time to time to issue bonds for the construction of the park, which shall not be included within the limit of municipal indebtedness. This act removes the difficulty which otherwise the city council might find itself under, by reason of the statute’s limiting the amount of municipal indebtedness; but there is nothing mandatory in it. The vote of the city council to this effect must be passed in the manner provided by the Pub. Sts. c. 29, § 7, that is, by two thirds of all the members of each branch of the city council, taken by yeas and nays, and approved by the mayor; or, if he’ disapprove such vote, by another like vote, taken after notice of such disapproval. All this clearly contemplates a discretionary, and not a compulsory, action on the part of the city council. It was not intended that this court should have power to order two thirds of all the members of each branch of the city council to vote by yeas .and nays to authorize the city treasurer to issue bonds of the city, in spite of the disapproval of the mayor. The St. of 1886 imposes upon the city council no new duty which can be enforced by a writ of mandamus. Petition dismissed.