Attorney Gen. v. City of Nashua

• Decision Date: 28 July 1893
• Citation: 32 A. 852,67 N.H. 478
• Parties: ATTORNEY GENERAL ex rel. SPALDING et al. v. CITY OF NASHUA.
• Court: New Hampshire Supreme Court

32 A. 852

67 N.H. 478

ATTORNEY GENERAL ex rel. SPALDING et al.

v. CITY OF NASHUA.

Supreme Court of New Hampshire. Hillsborough.

July 28, 1893.

Case reserved from Hillsborough county.

Action by the attorney general, on the relation of one Spalding and others, against the city of Nashua for the specific performance of a contract and the execution of a trust. Reserved for consideration of this court. Case discharged.

The defendant's ordinances provide that "there shall be, within the city of Nashua, a public library which shall be kept in suitable and convenient rooms located in the central part of the city"; that it shall be managed by a board of trustees, consisting of nine members; and that not less than $1,000 shall be annually appropriated and paid to the trustees for the purchase of books and the payment of expenses. April 26, 1892, in pursuance of votes of the mayor and aldermen and the common council, two aldermen and three councilmen were appointed a committee to act with the trustees of the library in the selection of a lot for a library building. At a special meeting of the city councils holden September 6, 1892, Mrs. Mary A. Hunt and her daughter presented the following communication, signed by them: "To the City of Nashua: The undersigned hereby agree to give to the city of Nashua the sum of fifty thousand dollars, for the erection of a building for the public library, on the following conditions: First That the city shall, within a reasonable time, provide a suitable lot for said building, the location to be selected by the joint committee lately appointed by the city government and the trustees of the public library for a similar purpose. Second. Said building shall be erected under the supervision, direction, and control of the trustees of the public library, who shall have the care and expenditure of said fund, and shall have power to appoint a building committee, and any other committees they may think necessary, and also shall have authority to empoly an architect, and to make contracts in the name of the city for the expenditure of said fifty thousand dollars for the purpose designed. Third. This gift shall be considered as a memorial of the late John M. Hunt, which shall be suitably recognized in or about said building. Sept. 2, 1892." The city councils on the same day took action thereon as stated in the opinion. Soon afterwards Mrs. and Miss Hunt paid to the city the $50,000. September 30, 1892, the joint special committee above mentioned— three trustees 6f the library acting for the board, by their appointment—voted "that this committee approve the Greeley lot for the library building, and select the same, provided it can be had for a sum not exceeding $35,000." The five members of the committee appointed by the mayor and aldermen and common council reported the action of the committee to those bodies, and the report was accepted, but they failed to take action for obtaining the lot. The lot can be purchased at a cost of $35,000. It is not at the center of population; and the defendant offered to prove that it is not "in a central part of the city" within the meaning of the ordinance, and so is not "a suitable lot" within the meaning of Mrs. and Miss Hunt's communication.

R. M. Wallace and C. W. Hoitt, for plaintiff.

C. H. Burns and C. J. Hamblett, for defendant.

CHASE, J. By the communication of September 2, 1892, Mrs. Hunt and her daughter proposed to give to the city of Nashua $50,000 for the erection of a building for the public library, on the following, among other, conditions: That the city should, within a reasonable time, provide a suitable lot for the building, to be selected by the joint committee appointed by the city government and the trustees of the library for a similar purpose. Upon its receipt, the city councils passed the following joint resolution: "Resolved, by the mayor and aldermen and common council of the city of Nashua, in city councils assembled, as follows: That the city of Nashua hereby accept the gift of $50,000 from Mrs. Mary A. Hunt and Miss Mary E. Hunt for a public library building on terms proposed in a communication to the city councils of date Sept. 2d, 1892." They also passed a concurrent resolution conveying to the donors "the unanimous expression of their high appreciation" of the generous gift, and stating that it "is more highly valued from the fact that it comes to the city free from embarrassing conditions, and can be made available without unnecessary delay." Soon afterwards the donors paid the $,50,000 to the city, and the money is now in its treasury. These acts constituted a valid executed gift of the money to the city in trust for the benefit of its inhabitants. The city was authorized to be trustee of such a gift. Pub. St. c. 40, § 5; Sargent v. Cornish, 54 N. H. 18. It is not unusual to attach conditions to such gifts (Sargent v. Cornish, supra; Library v. Bliss, 151 Mass. 364,...