ALFRED W. HOWES vs. TOWN OF ESSEX.

WILKINS, J. The plaintiff, an attorney at law, sues for legal services rendered in the construction of a municipal water system. A demurrer to the amended declaration was sustained, and the plaintiff appealed. G. L. (Ter. Ed.) c. 231, Section 96.

The amended declaration, which is in one count, consists

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chiefly of one unbroken paragraph occupying about four pages of the printed record, exclusive of three additional pages of quotations incorporated by reference from articles in warrants for, and votes at, various town meetings of the defendant. The amended declaration is vague and equivocal in several respects, and the demurrer could rightly have been sustained on the ground that it does not state concisely and with substantial certainty the substantive facts necessary to constitute a cause of action. G. L. (Ter. Ed.) c. 231, Section 7, Second. We allude to these formal deficiencies because of the difficulty we have encountered in trying to analyze the cause of action, but we make no detailed discussion, as we prefer to dispose of the case on the substance rather than the form of the declaration.

Another ground of demurrer is that the amended declaration does not set forth a legal cause of action. G. L. (Ter. Ed.) c. 231, Section 18, Second. There is an allegation that the plaintiff's employment was pursuant to certain votes of the town made "under the authority of" St. 1934, c. 261, entitled, "An Act authorizing the town of Essex to supply itself and its inhabitants with water." Section 10 requires as a condition precedent to the effectiveness of the act the "acceptance by a majority of the voters of the town . . . at a town meeting called for the purpose within three years after its passage." There is no allegation that c. 261 was thus accepted. Even if it has been, we cannot take judicial notice of that fact. See Cerwonka v. Saugus, 316 Mass. 152, 153; Boyle v. Building Inspector of Malden, 327 Mass. 564, 566; Sunderland v. Building Inspector of North Andover, 328 Mass. 638, 641.

It is possible that this defect in the cause of action alleged might be cured by amendment. So we turn to certain allegations which show that the amended declaration is otherwise fatally defective. On March 18, 1947, the town appropriated for the establishment of a water system the sum of $333,000, of which $300,000 was to be borrowed and notes issued; and voted, "The board of selectmen and the water commissioners are hereby authorized to enter into all

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necessary contracts and do all other things which may be necessary for the completion of said water supply system." At a later town meeting on July 7, 1947, this vote was revised in respects not at present material and reenacted. [Note 1] At the same time it was voted "That the action taken by the town . . . on March 17, 1947, and March 18, 1947, in connection with the foregoing matters be, and it is hereby ratified, confirmed and approved in so far as it is consistent with the foregoing." "Thereafter the defendant, acting under the authority of said acts and votes, and acting by and through its board of water commissioners and its board of selectmen, as authorized by and under said votes and acts, proceeded to let, and to enter into numerous contracts to construct and establish a water supply system." On March 7, 1949, the defendant at a town meeting appropriated an additional $40,000, which was to be borrowed and notes issued. On May 17, 1949, "there remained in said appropriations hereinbefore referred to, viz: $333,000 and $40,000, a balance in excess of $16,000, no part of which balance had been expended or was being held for obligations previously incurred." On that date "the defendant's board of selectmen and its board of water commissioners, acting under the authority of the votes and acts hereinbefore referred to, employed the plaintiff in his capacity as an attorney at law to advise the defendant and to assist it in the enforcement of its rights and in the performance of its obligations under said contracts, and to render general assistance to it in the completion of the water system . . .. The plaintiff accepted such employment, for which the defendant's board of selectmen and board of water commissioners, acting for the defendant under the authority of said acts and votes, agreed to pay the plaintiff . . . fair and reasonable compensation."

It is apparent that the foundation of the plaintiff's case

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is the votes of March 18, 1947, July 7, 1947, and March 7, 1949. The theory, according to his brief, is that he was employed by the board of selectmen and the board of water commissioners as agents of the town to advise and assist the town in the completion of its water system. As a matter of interpretation, however, we do not think that the authorization given on March 18, 1947, to the board of selectmen and the water commissioners "to enter into all necessary contracts and do all other things which may be necessary for the completion of said water supply system" included the hiring of a lawyer who would be paid out of an appropriation largely to be raised by borrowing and the giving of bonds or notes of the town which might remain outstanding for thirty years. The same objection applies to the appropriation of $40,000 voted on March 7, 1949, to be raised entirely by borrowing. As was said in O'Reilly v. Scituate, 328 Mass. 154, 155, "When legal counsel is meant it is usual to say so." This statement is particularly pertinent where it is contended that attorneys' fees are to be paid in whole or in part out of the proceeds of town borrowing.

In the alternative, the plaintiff now tries to make the one count of the amended declaration do double duty. He argues that the board of water commissioners alone could hire him as attorney for the town, and he refers to St. 1934, c. 261, Section 8, which created this board and contains the statement: "All the authority granted to the town by this act, except sections five and six [relating to the issuing of water loan bonds and the payment thereof], and not otherwise specially provided for, shall be vested in said board of water commissioners, who shall be subject, however, to such instructions, rules and regulations as said town may impose by its vote." But in the one lengthy count there is no allusion to Section 8 or to this supposed power of the board of water commissioners. There is, in fact, no allegation that this board alone did anything. It is not alleged that in fact this board did hire him. The important words, as we cull them from the amended declaration, seem to be, "the defendant's board of selectmen and its board of water

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commissioners, acting under the authority of the votes and acts hereinbefore referred to, employed" and agreed to pay the plaintiff to assist the defendant. These are not allegations that one of the boards acting under one of the sections of one of the acts and under none of the votes but contrary to one of them employed the plaintiff to advise the town. If the plaintiff cared to present this ground of liability it should have been made the subject of a separate count concisely setting forth the material allegations in order that the defendant might have been fairly advised, so as to permit the intelligent preparation of an answer.

Order sustaining demurrer affirmed.

Judgment for the defendant.