Blood v. Manchester Elec. Light Co.

• Decision Date: 26 July 1895
• Citation: 68 N.H. 340,39 A. 335
• Parties: BLOOD et al. v. MANCHESTER ELECTRIC LIGHT CO. et al.
• Court: New Hampshire Supreme Court

39 A. 335

68 N.H. 340

BLOOD et al.

v. MANCHESTER ELECTRIC LIGHT CO. et al.

Supreme Court of New Hampshire. Hillsboro.

July 26, 1895.

Bill by Aretas Blood and another against the Manchester Electric Light Company and another to set aside a contract made May 23, 1893, by the city councils of the city of Manchester, with the Manchester Electric Light Company, for lighting the streets of the city for a period of 10 years, on the ground that the councils did not have power to make a contract for such a period, and that the contract is void because of fraudulent conduct of members of the city councils and of the agents of the company in making it. The facts constituting the alleged fraud are not set forth. The defendants demurred. Sustained.

David Cross, Sulloway & Topliff, and Burnham, Brown & Warren, for plaintiffs. James F. Briggs and Oliver E. Branch, for defendant Manchester Electric Light Company.

Edwin F. Jones, for defendant city of Manchester.

CHASE, J. In this state, taxpayers have a right to resort to equity to restrain a municipal corporation and its officers from appropriating money raised by taxation to illegal or unauthorized uses. Brown v. Marsh, 21 N. H. 81; Merrill v. Plainfield, 45 N. H. 126; Gates v. Hancock, Id. 528; Greenland v. Weeks, 49 N. H. 472, 480; Brown v. Reding, 50 N. H. 338, 348; Brown v. Concord, 56 N. H. 375. The remedy is direct, convenient, and adequate, and falls within the rule which entitles parties to the best practical remedy for the redress of their wrongs. The object of such a suit is to enforce a trust lodged with a municipal corporation in behalf of its taxpayers,—a matter that is clearly within equity jurisdiction. 2 Dill. Mun. Corp. § 915. The case is analogous to those in which stockholders of a private corporation resort to equity to have the corporation and its officers restrained from doing unauthorized acts. Marsh v. Railroad Co., 40 N. H. 548; Pearson v. Railroad Corp., 62 N. H. 537. If there are authorities to the contrary elsewhere, they are not approved. This cause of demurrer is overruled.

Another ground of demurrer is that the facts alleged in the bill do not show that the contract is void for want of power in the city councils to make it. The particular question submitted in this connection is whether it was within the power of the councils to make a contract for lighting streets for so long a term as 10 years. The plaintiffs claim that the councils could not bind the city beyond the term of their office. The powers of the city, and the authority of its councils to act for it, are conferred by statute. Section 1, c. 40, Pub. St., provides that "every town is a body corporate and politic, and by its corporate name can sue and be sued, prosecute and defend, in any court or elsewhere." Section 3 empowers a town to purchase and hold real and personal estate for the public uses of its inhabitants, and to sell and convey the same, and to "make any contracts which may be necessary and convenient for the transaction of the public business of the town." The lighting of public streets is public business, and towns art expressly empowered to vote money for that purpose. Pub. St. c. 40, § 4. No limitation is put upon this power in reference to the lighting of streets that does not pertain to it in reference to other subjects. A town has as complete power to contract for lighting its streets as for building its highways or other public works. The only limitation is the general one that the contract shall be "necessary and convenient" for the transaction of the town's business. This is simply a declaration of the common law, applicable to all corporations, public as well as private, confining their powers to contract to those subjects which are necessary and proper to enable them to fulfill the object of their incorporation. The city councils of Manchester were authorized to exercise the powers of the corporation, namely, "all the powers vested by law in towns or in the inhabitants thereof."

Pub. St. c. 50, 5 1; Laws 1816, c. 384, § 14. This language excludes all ground for believing that the legislature intended to limit the authority of the councils so that they could not bind the corporation beyond the unexpired part of their term of office. The legislature would not leave such intention to be inferred from language which conveys no suggestion of the limitation. The necessity for continuity in the operations of the government is a reason why there should be no such limitation. The agencies of the government change, but the government goes on without interruption. The authority of the city councils while in office being co-extensive with the powers of the city or its inhabitants, the limitation in their term of office is immaterial in the decision of the question under consideration. The contract stands the same as if it had been made by a vote of the inhabitants acting under a town organization.

It is claimed by the plaintiffs that a town...