dissenting. I regret that I feel compelled to dissent from the decision of the court in this case.
It is a writ of mandamus, issued in behalf of a majority of the persons composing the “ board of water commissioners ” for the town of Holyoke,-against Charles W. Eanlett, who is the treasurer of the town of Holyoke, and, as such, by the terms of the act of the Legislature authorizing the creation of the board, is made, ex officio, a member thereof. By the decision of the court, Eanlett is compelled to surrender the bonds of the town, prepared for the purpose of raising money to meet the expenses of the works to be undertaken, into the possession and control of the petitioners for this writ.
*127It is provided by the act (St. 1872, e. 62, § 4) that “said town may issue coupon bonds, signed by the treasurer and countersigned by the chairman of selectmen of said town; ” “ and said town may sell said bonds at public or private sale, or pledge the same for money borrowed for the purposes of this act, upon such terms and conditions as it may deem proper.”
It appears to me that the argument is very strong in favor of the position of the respondent, that it was the intention of the act that the creation and negotiation of the bonds, the custody and control of the funds arising therefrom, and the payment of liabilities incurred by the town in the execution of the work, should be conducted by the selectmen and treasurer, in the ordinary mode of conducting the financial affairs of the town. But conceding that the act would authorize the town to vote, as it did, that “ the water commissioners be authorized to issue ” the bonds and to negotiate them “ in such amounts and at such times as they may deem best,” it does not relieve the case of its difficulties.
In the first place, the commissioners, exercising such an authority, are but the agents of the town, acting in its name and behalf. They have no rights or interests of their own, and no public duty, except as the mere agents of the town. They are not entitled to maintain any action for the possession of the bonds otherwise than in the name and by the express authority of the town. Bates v. Overseers of the Poor of Plymouth, 14 Gray, 163. Much less can individual members of the board, although constituting a majority, maintain it against other members of the same board.
But the most serious objections are not matters of form. As I interpret the votes of the town, they do not authorize a majority of the commissioners to withdraw the bonds from the custody and control of the treasurer of the town, otherwise than by their negotiation and sale, or deposit in pledge. The statute, if it does not forbid any such proceeding, certainly contemplates that the treasurer will be the financial officer of the board. It is not RanLett who is, by the explicit provisions of the act, made a member »f the board ; but the treasurer of the town “ ex oficio ” So far *128as he is concerned, it is not left for the town to change or contra. the appointment. This is a strong indication that it was intended by the Legislature that the treasury of the town should be the place of deposit and custody of the funds and the securities that might be created under the act. If not controlling as a matter of authority and right, it should have great weight in construing the votes of the town in this respect.
But I do not find, in the votes of the town, any indication of a purpose to commit its funds or securities to any other custody than its own treasury. The authority to negotiate the bonds was given to the board of commissioners as a body, of which its treasurer was one. The vote authorizing the board to exercise its powers “ in such manner as a majority thereof shall determine,” is expressly limited to the powers conferred by the second and third sections of the act, which do not relate to the bonds. Doubtless a majority may exercise powers thus conferred, unless specially restricted. But the authority given1 is simply to negotiate the bonds, “ in such amounts and at such times as they may deem best.” Such a vote does not imply any different custody from what would result in case the negotiation were to be made by the selectmen, or any other agent appointed for the purpose by the town; especially when the treasurer is one of the officers charged with the negotiation.
It is said that the treasurer refuses to perform his duty, withholds the bonds, and obstructs the commissioners in the proper exercise of their authority to negotiate them. If so, he may undoubtedly be compelled to perform his duty in this particular by a mandamus properly brought. But the writ should command him to perform his duty as treasurer and commissioner; it should not deprive him of his office as commissioner, nor of his proper custody of the funds or securities of the town as treasurer.
The grounds, relied on for the support of these proceedings, we have before us only as they are recited in the writ. They are, in substance, only that the commissioners “ had duly requested ” the respondent “ to sign the bonds and to deliver the same into the custody of said board,” but the respondent “ had refused and still refused so to do, claiming that in his capacity ox *129town treasurer he was entitled to the custody and control of the bonds and of all the proceeds thereof.” It is alleged that the commissioners were “ greatly in need of money to meet their just obligations in that behalf contracted, and of said bonds for the purpose of raising said money as intended by said act.”
To this it is well answered that such obligations are debts, not of the commissioners, but of the town, and to be paid by the town.
But taking this statement as equivalent to an averment that there is occasion or necessity for negotiating bonds to raise money for the purposes of the act, I submit that no ground is shown for this writ; because it is not shown that the respondent has done any act, or refused to do any act, whereby he has in any way obstructed the accomplishment of that purpose in any proper mode. By the demurrer his return is admitted to be true ; and it must be so taken by the court. He states “ that he has, and had before the petition for this writ was made, signed the bonds in his official capacity, and is ready to deliver them to any person or persons when thereto instructed by the proper authority, on receiving the amount for which they shall have been negotiated or pledged by any one having authority to sell or pledge them.” It is true he adds a denial of the authority of the commissioners to negotiate the bonds ; and of the town to give them such authority by its vote; and avers that, “ by the by-laws of the town, it is made the duty of the treasurer to negotiate all loans that may be made for the town, under the authority and sanction of the selectmen.”
If this assertion in his return, or this denial of the authority of the commissioners, not disclosed in the writ itself as a cause for its maintenance, may nevertheless be availed of as a good ground for sustaining the writ for any purpose, it should go no farther than a direction to the respondent to hold the bonds subject to delivery upon the order of the board of commissioners upon sale or pledge thereof by them, receiving the proceeds of such sale or pledge in return.
But that is not what these petitioners seek, nor what the writ, as issued, directs. The complaint, as recited in the writ, discloses nothing but a controversy in regard to the proper custody and *130control of the bonds and of the proceeds thereof; the respondent contending, and as it seems to me with good ground, that their custody should be with him, in his double capacity of town treasurer and member of the board of commissioners, (rather than with any part of the commissioners less than the whole board 5) the petitioners seeking, by virtue of constituting a majority of the commissioners, to deprive him of that custody. The question whether the commissioners might make sales of bonds and direct their delivery is not presented by the petitioners, and it is not asserted that they have been prevented from making such sales by any acts or refusals of the respondent, nor that they have attempted to make such sales; nor does it appear that, in order to effect sales, it is necessary that the bonds should be taken from' the custody of the respondent and placed in the hands of other members of the same board. The writ is made use of, not to compel the respondent to do all such acts as may be necessary to enable the board of water commissioners to negotiate the bonds, and thus provide funds with which the town may meet its liabilities contracted by them, but to transfer the custody and manual control of the bonds from the respondent to some other custodian to be designated by the petitioners; and this on the ground that they, as a majority of the board, have an absolute right to control the disposition and custody of them. This would seem to me to be an abuse of the writ in any case ; but all the more so in view of the fact that the respondent alone is made by the statute a member of the board, for the sole reason that he is treasurer of the town, for the time being.