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eBook details

• Title: Tuckerman Et Al. v. Moynihan
• Author : Supreme Court of Minnesota
• Release Date : January 04, 1933
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

Description

WAIT, Justice. At its annual town meeting in March, 1932, the town of Hamilton passed three votes: (1) That the Surveyor of Highways be hereby instructed that all work on highways, including Snow Removal, where trucks are required, be let to the lowest bidder after sealed proposals have been received in response to suitable advertising in the Salem Evening News, work under this motion to start not later than April 1, 1932, and further, that said contract be approved by the Board of Selectmen; that the bidders on work on highways, including Snow Removal be limited to the Town of Hamilton; (2) That the Town authorize and instruct the surveyor of Highways to discontinue the use of the Mack Truck on all Town work and that said Mack Truck be returned to the owner, the Commonwealth of Massachusetts, not later than April 1, 1932; (3) That the Town authorize and instruct the Surveyor of Highways to discontinue the use of the Ford dump truck, now attached to the highway department, and that said Ford dump truck be disposed of sale to the highest bidder not later than April 1, 1932. This action was taken under an article in the warrant for the meeting, which read: To raise and appropriate money for Schools, Highways and all town expenses and determine the manner of expending same. The last clause of (1) was added on an amendment offered by the respondent Moynihan. He later at the meeting was elected surveyor of highways. He has accepted the position; but has absolutely disregarded the votes, believing them to be invalid. In this belief the selectmen share. Twelve taxpayers in Hamilton file this petition for mandamus to compel him to put the votes into effect. He admits the facts alleged: that the Mack truck is the property of the Commonwealth; that the Ford dump truck belongs to the town; and that both have been in use in work in repairs upon the highways of the town after April 1, 1932. He contends that the votes are invalid because not within the scope of the article of the warrant; are inoperative because as highway surveyor of Hamilton he is not bound by them; and because they are in violation of G. L. (Ter. Ed.) c. 41, § 62, which provides that if a highway surveyor be chosen, he shall have the exclusive control of the ordinary repair of public ways in his town without being subject to the authority of the selectmen; and, lastly, in part at least, are unenforceable in this proceeding because mandamus is an improper remedy.

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