Opinion
Opinion February 18, 1928.
MUNICIPAL CORPORATIONS. R. S. CHAP. 82, SEC. 6, CL. XIII.
Equity jurisdiction of the Supreme Judicial Court under R. S. Ch. 82, Sec. 6, Cl. XIII on petition of ten taxable inhabitants of a municipality complaining against the payment of money from its treasury for a purpose not authorized by law, or against any of its officers or agents for attempting to pay out the same, interpreted: Not only must the municipality be made a party defendant to a bill in equity brought by ten taxable inhabitants thereof under the provisions of this statute, but it must appear in the allegations of the bill that the municipality has done some of the acts enumerated in the statute, or that some "officer" or "agent" is "attempting" to misappropriate the money of the municipality. Tax payers may be heard only when they bring themselves within the statute.
In the instant case the owner of the judgment was the only defendant.
Neither the municipal corporation of Thomaston nor its officers or agents were parties to the suit.
No allegation appeared in the bill that the town had done any of the acts enumerated in the statute, or that any officer or agent was attempting to misappropriate the town's money.
The court had no jurisdiction on the bill and the demurrer was well sustained.
Whether the obtaining of a judgment against a municipality is the creation of a debt against it, within the meaning of the constitutional provision limiting the amount of indebtedness which a municipality may incur, not considered or determined by the court.
On exceptions by plaintiffs to ruling sustaining defendant's general demurrer to plaintiffs' bill. Bill in equity by ten taxable inhabitants of the town of Thomaston alleging that prior to the obtaining by defendant of a judgment against the town the permanent indebtedness of the town was in excess of the five per cent constitutional limitation, and therefore asking that defendant be enjoined from enforcing his judgment, or any part thereof, against the town, or against the real estate of any inhabitant thereof situated therein. To enforce the judgment he had recovered against the town, defendant had caused levy to be made on property of an inhabitant thereof. To plaintiffs' bill defendant filed a general demurrer which was sustained by the court and exceptions thereto duly taken by plaintiffs.
Exceptions overruled.
The case appears in the opinion.
Frank B. Miller, Rodney I. Thompson, for plaintiffs.
Charles T. Smalley, for defendant.
SITTING: WILSON, C. J., DUNN, BARNES, BASSETT, PATTANGALL, JJ.
When a town votes to pledge its credit or raise money by taxation or pay from its treasury any money for a purpose not authorized by law, or, for such purpose, any town officer or agent "attempts" to pay out the town's money, the equity jurisdiction of the Supreme Judicial Court, upon the petition or application of not less than ten taxable inhabitants of the town, may hear and determine the same. R. S., Chap. 82, Sec. 6, Cl. XIII.
These plaintiffs are ten taxable inhabitants of the town of Thomaston. The defendant is a judgment creditor of the town, whom the plaintiffs seek to prohibit and restrain from enforcing judgment, on the ground that at the time the debt, if it may be so called, which is merged in the judgment, was made by the town to the defendant, the indebtedness of the town already exceeded constitutional limitation. Con. of Maine, Art. XXXIV.
The owner of the judgment is the only defendant.
Of the facts alleged by the plaintiffs in their bill, the substance is that the present defendant brought an action of contract against the town of Thomaston, in the Supreme Judicial Court in Knox county, and at the April (1927) Term recovered judgment for $3255.40. The court had jurisdiction, and the judgment was not set aside. Execution issued. The sheriff was commanded, for the want of goods and chattels wherewith to satisfy the execution, to levy upon real estate in the town, whether owned by the town or not, and sell so much of the real estate as might be necessary to pay the execution and the expense of the sale. The sheriff, who had certified his failure to find goods or chattels available, seized that Thomaston real estate which one Lois M. Creighton owned, and advertised that the real estate would be sold to satisfy the execution and charges. When Thomaston and the defendant had dealings, and before the debt to the defendant was incurred, the indebtedness of Thomaston exceeded the constitutional debt-limit.
There is prayer to enjoin the enforcement of the judgment, and for general relief.
Defendant demurred. The demurrer was sustained. Plaintiffs excepted.
It is unnecessary to consider whether the obtaining of a judgment against a municipality is the creation of a debt against it, within the meaning of the constitutional provision limiting the amount of indebtedness which a municipality may incur.
Neither the municipal corporation of Thomaston nor its officer or agent is party to this suit. A statute similar to that in Maine exists in Massachusetts. There it was held that the municipality must be a party. Allen v. Turner, 11 Gray, 436. By parity of reasoning, if the officer or agent of a town is concerned, he should be a party. Even if the town or its officer or agent were made a defendant, the result would be the same, because there appears no allegation in the bill that the town has done any of the acts enumerated in the statute, or that the officer or agent is "attempting" to misappropriate the town's money.
Taxpayers may be heard only when they bring themselves within the statute. Johnson v. Thorndike, 56 Maine, 32.
The court had no jurisdiction on the bill, and the demurrer was well sustained.
Exceptions overruled.