Clapp v. Town of Jaffrey

• Decision Date: 09 October 1952
• Citation: 91 A.2d 464,97 N.H. 456
• Parties: CLAPP et al. v. TOWN OF JAFFREY et al.
• Court: New Hampshire Supreme Court

Page 464

91 A.2d 464

97 N.H. 456

CLAPP et al. v. TOWN OF JAFFREY et al.

Supreme Court of New Hampshire.

Oct. 9, 1952.

Francis H. Ayer and Arthur Olson Keene, for the plaintiffs.

Walter H. Gentsch, East Jaffrey, and Upton, Sanders & Upton, Concord, Richard F. Upton, Concord, for the defendants.

BLANDIN, Justice.

The first question transferred to us is whether it is lawful for the town to rent equipment to or perform services for private individuals on their property. Assuming that such actions are subordinate and incidental to town needs, and that the prices charged are sufficient to cover the cost so that no burden falls on taxpayers, we believe such actions are lawful. In the case of Curtis v. City of Portsmouth, 67 N.H. 506, 39 A. 439, one question raised was whether the city could sublet part of a building, leased by it for authorized uses, to an unincorporated veterans association. The court held that since occupation by the veterans post was 'incidental and subordinate' to the lawful general purposes, the action of the city was not ultra vires. The opinion went on to say that 'The case is similar to that of a municipality leasing parts of the town or city hall, not needed for municipal purposes, for stores or offices.' 67 N.H. at pages 508-509, 39 A. at page 440. This decision was approved in Meredith v. Fullerton, 83 N.H. 124, 139 A. 359, and although the lease there was voided for other reasons, it is significant that the court found no fault with the fact that janitor services as well as heat and light were to be furnished by the town to the lessee. In Douglas v. Hollis, 86 N.H. 578, 172 A. 433, 434, the opinion states that the right of a town 'to lease parts of a public building not needed for municipal purposes is unquestioned.' None of these cases have been overruled or criticized in this jurisdiction, and there is good authority to analogous effect elsewhere. The Maggie P, C.C., 25 F. 202, 204. There appears no sound distinction between leasing real estate with an agreement to furnish such services as heat, light, and a janitor and leasing personalty or performing such actions as plowing or tarring a driveway.

While neither expediency nor custom should be allowed to override principle, it is common knowledge and a fact entitled to weight (76 Univ.Pa.Law Rev. 824, 825) that town help and equipment which would otherwise lie idle have been used to plow private ways for many years. This has been both a source of income to the towns and a convenience to individuals who otherwise might experience great difficulty in obtaining this necessary service. The fact that some of the acts questioned here, such as plowing driveways, are done on private property does not alter the situation. No authority that it does has been furnished us, nor has counsel for the town suggested any persuasive reason for making such a distinction. It is well known that long before the passage of c. 133, Laws 1949, relative to public dumps and the removal of waste and garbage, towns had collected rubbish and garbage generally at the back door at homes, hotels, and restaurants. The pumping of water out of private cellars by fire departments or other municipal departments possessing the necessary equipment has long been practiced. Not only do great numbers of people now accept and even demand such services as are involved here, but their performance has been an increasingly important factor in local government. See Hillhouse, 'Where Cities Get Their Money'; Pelletier, 'Financing Local Government', Bowdoin College Municipal Research Series No. 12, 1948. Indeed, it seems that ordinary prudent management dictates that the town derive some income and the public some benefit from this property when not needed for town uses rather than permit it to lie idle. Clarey v. Philadelphia, 311 Pa. 11, 16, 166 A. 237; Bates v. Bassett, 60 Vt. 530, 531, 15 A. 200, 1 L.R.A. 166; Davis v. Rockport, 213 Mass. 279, 100 N.E. 612, 43 L.R.A.,N.S., 1139.

The reasoning in Opinion of the Justices, 313 Mass. 779, 47 N.E.2d 260, furnishes no support for the proposition that plowing, tarring, or sanding private driveways is necessarily ultra vires. The court held there that plowing private ways open to the public was a legitimate service for a municipality to perform. It also affirmed the ancient rule that tax monies can not be used for the advantage of private individuals. The defendant town in the case before us in its brief expressly concedes that such is the rule in our state, Stocklan v. Brackett, 95 N.H. 227, 61 A.2d 140, and cases cited, and also admits it has no power to perform the services concerned here as a primary undertaking. Opinion of the Justices, 94 N.H. 515, 53 A.2d 194, and authorities cited. However, the distinction between the situation in Opinion of the Justices, 313 Mass. 779, 47 N.E.2d 260, and the one before us is plain. In the Massachusetts case the persons to whom service was rendered paid nothing for it and the burden therefore fell on the taxpayers. Obviously, the language of the opinion must be construed with this fact in mind. Our conclusion is that if the individuals served pay a sufficient fee so that no tax monies are being expended, and if the acts are subordinate and incidental to the town needs, the town may perform any or all of the services in question. Under the same assumption the town may rent its equipment to private individuals. In so deciding we wish to make it crystal clear that 'subordinate and incidental' are vital and restrictive words. Their meaning is not to be expanded to permit the town to make purchases or hire help beyond its own reasonable public needs in order to use them for the benefit of private persons. Neither can the town perform services for or make rentals to individuals to an extent which under all the circumstances may be deemed proportionately substantial. In such an event it might fairly be said that the acts were no longer subordinate and incidental but would become primary undertakings and therefore ultra vires as the defendant expressly concedes in his brief. Their illegality would be equally clear if the charge were insufficient to relieve taxpayers of all burdens.

We also are asked to decide whether the plaintiffs are entitled to injunctive relief in their capacity as owners of equipment, citizens, residents, voters or taxpayers of Jaffrey. We have been furnished with no authority nor do we find any to indicate that a voter or a citizen in whichever of its various senses the latter word is used, see 14 C.J.S., Citizens, §§ 1, 2, has any greater right here than a taxpayer....