Bridgham v. City of Keene, 6095

• Decision Date: 31 March 1972
• Docket Number: No. 6095,6095
• Citation: 289 A.2d 392,112 N.H. 84
• Parties: William T. BRIDGHAM et al. v. CITY OF KEENE et al.
• Court: New Hampshire Supreme Court

Page 392

289 A.2d 392

112 N.H. 84

William T. BRIDGHAM et al. v. CITY OF KEENE et al.

No. 6095.

Supreme Court of New Hampshire.

March 31, 1972.

William D. Tribble, and Aaron A. Lipsky, Jaffrey, for plaintiffs.

Charles H. Morang, City Atty. (by brief and orally), for defendants.

DUNCAN, J.

This bill in equity by residents and legal voters of Keene, as filed on October 29, 1969, sought to enjoin the city and its clerk from placing on the ballot to be used at the regular city election to be held on November 4, 1969, the question of whether the city charter should be amended. RSA 49-A:10. On October 30, 1969 the Superior Court (Dunfey, J.) denied an ex parte temporary injunction, without prejudice.

The question was duly submitted to the voters on November 4, 1969 and 2554 votes were cast in favor of amending the charter and 1884 against. In January 1970, the defendants answered the bill, and moved to dismiss it for the reasons among others that the question was moot, and that no grounds for the relief sought was stated by the bill. The plaintiffs were then granted leave to amend, to seek a declaratory judgment that the vote was invalid because of failure to comply with requirements of RSA ch. 49-A. The questions of law presented by the motion to dismiss were reserved and transferred without ruling by Morris, J.

Since the bill as amended calls in question the legality of the charter amendments adopted on November 4, 1969, we do not consider the issue before us to be moot. See Sugar Hill Improvement Ass'n v. Lisbon, 104 N.H. 40, 42, 178 A.2d 512 (1962). Nor do we find it necessary to question the form of the proceedings by which review is sought. Levitt v. Maynard, 104 N.H. 243, 182 A.2d 897 (1962); see Sugar Hill Improvement Ass'n v. Lisbon supra; Clapp v. Jaffrey, 97 N.H. 456, 91 A.2d 464 (1952).

The amended bill alleges procedural failures to comply with RSA ch. 49-A: specifically a failure on the part of the charter commission to file its report in season for action at the November 4, 1969 election (RSA 49-A:10); and a failure of the defendant clerk within 30 days prior to November 4, 1969, to reproduce sufficient copies of the charter and cause their distribution to the voters as required by RSA 49-A:9. Additionally, allegations are made that the charter commission was not properly constituted, and that there was no publication of the proposed charter in any publication of general distribution in Keene.

We find no requirement in the statute that a proposed charter be published in a medium of general circulation, and no specific defect in the form or manner in which the charter commission was constituted has been alleged in the pleadings or presented in argument. The assertion in the plaintiffs' brief that the bill alleges 'substantial' as well as 'procedural' defects is not borne out by the record.

Section 10 of the statute requires the clerk to cause the question of adoption or rejection of the commission's recommendations to be placed on the ballot at the next election 'occurring not less than sixty days following the filing of the commission's report with the clerk'. RSA 49-A:10. The bill alleges that the report and the proposed charter were filed with...