Ogden v. Selectmen of Freetown

Rugg, C.J. This is a bill in equity by eleven taxpayers to restrain an alleged illegal expenditure of money by the town of Freetown. The case was heard upon bill and answer. The relevant facts thus disclosed are that at a special town meeting held on March 30, 1926, upon a warrant containing an appropriate article, it was voted that $12,500 be raised and appropriated for the construction of asphalt macadam on North Main Street, in conjunction with like sums contributed by the State and county, and of water bound macadam on Braley Road. On the record of the meeting it [141] further is stated: “Vote taken by paper ballot and names of voters checked as ballots were cast. The number of votes cast in favor of the article were 112; those opposed 89. As the Moderator ruled that at a special meeting a two-thirds vote is necessary to make an appropriation, the article was declared lost.” The vote as shown by the record was a valid vote. Money can be raised and appropriated at a special town meeting called for that purpose. Freeland v. Hastings, 10 Allen, 570, 590. By the vote as recorded money was raised and appropriated for a general public use. The sum so raised and appropriated became a part of the general tax levy for the year. It became the duty of the assessors to include that amount in the sum to be assessed to defray town charges. G. L. c. 59, § 23. No mention was made in the article nor in the vote as to incurring indebtedness. No authority to incur indebtedness existed under the vote. Hence provisions of statute relative to a vote by two thirds of those voting were inapplicable. The declaration by the moderator to the effect that the article was lost was a mere expression of opinion by him as to the force and effect of a vote stated in full terms on the record of the town. The office of moderator is an ancient one. Its powers are extensive. It is provided in G. L. c. 39, § 15, that the moderator “shall preside and regulate the proceedings, decide all questions of order and make public declaration of all votes . . . .” The public declaration of the vote in question included the statement of the question and the announcement of the number of votes cast on the one side and on the other. That vote stood as cast and declared and carried its own legal implications. The moderator was not clothed with any authority to interpret as matter of law the effect of the vote so declared. Adams v. Townsend Schoolhouse Building Committee, 245 Mass. 543, 549. The statement of his opinion by the moderator was of no binding force. It amounted to no more than did a declaration of the town meeting itself expressive of its view of the legal effect of a vote already taken. Wheeler v. Carter, 180 Mass. 382. 388. [142] The circumstance, that at the annual town meeting held earlier in the same month articles in the warrant calling for similar appropriations had been voted down, did not prevent a subsequent appropriation for the same purpose. The subject related to specific repair of highways. Bigelow v. Worcester, 169 Mass. 390, 393. L’Huilier v. Fitchburg, 246 Mass. 349, 351. The vote at the first meeting did not limit the power of the town at the second meeting. The principle of Wood v. Milton, 197 Mass. 531, has no pertinency to the facts of the case at bar. There is nothing in the record to indicate that the requirements of G. L. c. 81, §§ 26, 27; Sts. 1921, c. 120; 1922, c. 281, have not been or will not be met. Whether the State or county or town took the first step in the proceedings, is of no consequence in the circumstances here disclosed. It becomes unnecessary to consider whether there were laches on the part of the petitioners in bringing suit. See Conners v. Lowell, 246 Mass. 279, 285. Decree affirmed.