Bigwood v. Merrimack Village Dist.
Decision Date | 28 April 1967 |
Citation | 108 N.H. 83,229 A.2d 341 |
Parties | James BIGWOOD et al. v. MERRIMACK VILLAGE DISTRICT et al. Richard M. DENICOLA v. MERRIMACK VILLAGE DISTRICT et al. |
Court | New Hampshire Supreme Court |
Stein, Cleaveland & Rudman, Nashua (Morris D. Stein, Nashua, orally), for plaintiffs.
Harkaway, Barry & Gall, Nashua (Aaron A. Harkaway, Nashua, orally), for defendants.
These are two petitions for writs of mandamus to compel the Commissioners of the Merrimack Village District to adjust their water rates as to the plaintiffs and for further relief. The fundamental issue in each proceeding is whether the charges against the plaintiffs made after July 10, 1962, are legal. The plaintiffs, the Bigwoods, are the owners of a trailer park presently containing thirty-seven trailers. The plaintiff DeNicola owns two apartment houses containing a total of eight apartments. Before the date in question, the Bigwoods were billed a service charge for one meter and DeNicola was charged for two meters. Subsequently, both sets of plaintiffs were charged upon the basis of one meter for each unit.
The Bigwood petition was reserved and transferred by Dunfey, J., upon a hearing, and the De Nicola petition was reserved and transferred upon an agreed statement of facts by Morris, J. It appears unnecessary to detail further facts in the DeNicola case, since they raise questions analogous to those in the Bigwood proceeding, and counsel have agreed that our decision in the Bigwood case should be determinative of the DeNicola petition.
Upon a hearing, the Superior Court dismissed the Bigwood petition and the plaintiffs excepted to the denial of their motion to set the decree aside. After the decree had been rendered, the plaintiffs orally requested findings and rulings, which incorporate the essential agreed facts and are as follows:
'Petition for writ of mandamus to compel the Water Commissioners of the Merrimack Village District to adjust their water rates as to Petitioners' property consisting of a single residence and a number of trailers used by others; and, further, to compel the Commissioners to reimburse the Petitioners for charges from July 10, 1962 to date, which the Petitioners maintain were illegally implemented by virtue of the existing by-laws and action taken at the annual (District) Meetings of March 27, 1962 and March 26, 1963.
'The Court finds that under the by-laws as adopted at the time of the inception of the Water District and more specifically under Section 3-b thereof, the Commissioners were authorized and empowered to place a minimum service charge of $11.25 for each residence or single unit occupied by an individual, household or business enterprise, each unit to be treated as a distinct customer.
'Article 11 of the by-laws relating to amendments of the by-laws provided for amendments by majority vote of the (District) Meeting and/or of the Commissioners of the District.
'The Court finds that the adjustment of rates made by the Commissioners by virtue of its letter to all users of July 10, 1962 was in keeping with the authority which vested in the Commission under the provisions of the by-laws and more specifically Section 3-b and Article 11 thereof which were in effect at the time the new regulations of July 10, 1962 were promulgated by the Commission.
The plaintiffs saved no exceptions and made no motions during the trial. The only questions before us stem from the motion to set aside the decree as 'against the law, the evidence, and the weight of the evidence.' The only issues presented are those which may be fairly assumed from the...
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