Conway v. New Hampshire Water Res. Board

• Decision Date: 05 April 1938
• Parties: CONWAY et al. v. NEW HAMPSHIRE WATER RESOURCES BOARD et al. BALDWIN v. SAME.
• Court: New Hampshire Supreme Court

199 A. 83

CONWAY et al.

v. NEW HAMPSHIRE WATER RESOURCES BOARD et al.

BALDWIN

v. SAME.

Supreme Court of New Hampshire. Merrimack.

April 5, 1938.

[Copyrighted material omitted.]

Transferred from Superior Court, Merrimack County; Johnston, Judge.

Bill in equity to enjoin expenditure of state funds, by George W. Conway, and petition for a declaratory judgment for an adjudication of the right of the Water Resources Board to take land for a project by Frank W. Baldwin, against the New Hampshire Water Resources Board and others. Transferred on exceptions to findings and rulings in favor of defendants.

Bill and petition dismissed.

Bill in equity, and petition for a declaratory judgment. The two proceedings relate to a state project for the control and regulation of the Connecticut river in Pittsburg. They seek to raise the issue of the constitutionality of the legislation Laws 193S, c. 121, as amended by Laws 1937, c. 118, and Laws 1937, c. 190, upon the authority of which the project has been planned and of the plan for the project as a proper application of the legislation. The plaintiffs in the first proceeding own property on which they pay a state tax locally collected. For convenience they are called the taxpayers. The plaintiff in the other proceeding owns land which the defendants claim may be taken by eminent domain in the execution of the project. For convenience the defendant named in the title of the case is called the board.

Transferred by Johnston, J., on exceptions to findings and rulings in favor of the defendants. The facts, findings and rulings, so far as material, appear in the opinion.

Robert B. Hamblett, of Nashua, for taxpayers. John P. Carleton, of Manchester, for plaintiff Baldwin. Fred C. Demond and Robert W. Upton, both of Concord, for defendants.

ALLEN, Chief Justice.

Whether the taxpayers in their case may properly seek to enjoin the illegal expenditure of state funds appears to present an inquiry of new impression in this forum. Their right when the funds belong to municipal corporations is well settled. Blood v. Manchester Electric Light Company, 68 N.H. 340, 39 A. 335, and cases cited; Clough v. Verrette, 79 N.H. 356, 109 A. 78. The better reasoning is thought to extend the right to state appropriations and expenditures. While the state cannot be sued without its consent (Western Union Tel. Company v. State, 64 N.H. 265, 271, 9 A. 547; Bow v. Plummer, 79 N.H. 23, 24, 104 A. 35), and while a suit against those representing the state is one against the state when a judgment or decree against them would have the same effect as though it were directly against the state (Bow v. Plummer, supra, 79 N.H. 23, 24, 25, 104 A. 35), yet when the alleged or threatened wrong, though colorably the state's and in its name, is only that of its officials or agents, equity is deemed to have power to grant relief. When a law is challenged as unconstitutional, the claim is that the law is void and hence that no law has been enacted. It follows that if the Legislature has not acted under authority, no action has been taken by the state, and hence when suit is brought to restrain those representing the state from carrying the void legislation into operation and enforcing it, it is not a proceeding to which the state is a party. What is forbidden by the Constitution is outside the field of state activity; restraint of forbidden action is not imposed by the courts upon the state, but upon those asserting the right to take the action as though it were the state's and as though binding upon it.

While the threatened injury to the taxpayer may be slight in a suit to enjoin invalid action in the state's name, and much less than in a suit against a municipality or its officers, the degree or extent of injury does not measure principle. If collectively all the taxpayers brought suit, there would be no question of degree, and the right of all is derived from the right of each. "A slight exercise of unconstitutional power by either department of the government is not less invalid than an extensive exercise of it." Ashuelot Railroad v. Elliot, 58 N.H. 451, 457. In analogous reasoning, a slight injury caused by the exercise of invalid authority should be avoided or redressed in equity jurisdiction.

The weight of authority is believed to sustain the right of the taxpayers to bring their suit. Fergus v. Russel, 270 Ill. 304, 110 N.E. 130, Ann.Cas.1916B, 1120; Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann.Cas.1914B, 916; Christmas v. Warfield, 105 Md. 530, 536, 66 A. 491; Ellingham v. Dye, 178 Ind. 336, 99 N.E. 1, Ann.Cas.1915C, 200; Page v. King, 285 Pa. 153, 131 A. 707; Fischer v. Marsh, 113 Neb. 153, 202 N.W. 422; Hill v. Rae, 52 Mont. 378, 158 P. 826, L.R.A.1917A, 495, Ann.Cas.1917E, 210; Leckenby v. Post Printing & Pub. Co, 65 Colo. 443, 176 P. 490.

The petition for a declaratory judgment sets forth a claim of right and title disputed by the defendants. But counsel for the petitioner has waived the claim in open court and now merely asks that it be determined what his right and title is as between him and the defendants.

The declaratory judgment act, Laws 1929, c. 86, provides that one must assert a right or title to which the defendant claims adversely in order to invoke the court's judgment There is no right to an adjudication of matters not in contention. The petition accordingly should be dismissed for lack of jurisdiction.

In Opinion of the Justices, 88 N.H. 484, 190 A. 425, the view was taken that the act (Laws 1935, c. 121) creating a Water Resources Board and providing a scheme for action by it was in its general aspects valid. The members of the court were also agreed that the plan for the project of the Pittsburg dam and reservoir, developed under the authority of the act, involved no invalid action if certain facts existed. The views set forth in the Opinion are now held to have the force and standing of law announced and declared in the adjudication of litigation. In 1937 an act (Laws 1937, c. 118, supplemented' by Laws 1937, c. 190) was passed amending the 1935 act in certain respects. Its general features from a constitutional viewpoint do not differ from those of the 1935 act.

In the 1935 act a declaration of its purpose to develop water was announced. The public welfare was stated to demand that the state construct projects "for the conservation, development, storage, distribution and utilization of water." Section 1. The industrial and economic welfare of the state was thought in Opinion of the Justices, supra, to be a proper reason to develop water storage for use in creating water power. The 1937 act, c. 118, makes this particular purpose more emphatic by its declaration of the public need of water development to promote such welfare "by enhancing the present and potential water power along the rivers and streams."

It is argued that this is an unpermitted objective of state action because "a very limited class of private property owners" will be directly benefited by the action. The argument disregards the declared public need of the objective, and confuses the difference between the legality of the legislation and the legality of action in a particular case of application. The state clearly may engage in undertakings to develop its resources. It is no less in its interest than to conserve them; what may be saved is not the limit of legislative power; what may be produced is also a proper subject of action. Regulation of water to control floods is an authorized state enterprise, and regulation to produce water power is equally in the public interest. The needs of regulation for both purposes are present ones in the sense of preparation for the future.

"Necessity alone is not the test by which the limits of State authority in this direction are to be defined, but a wise statesmanship must look beyond the expenditures which are absolutely needful to the continued existence of organized government, and embrace others which may tend to make that government subserve the general well-being of society, and advance the present and prospective happiness and prosperity of the people." People ex rel. Detroit & H. R. Co. v. Salem, 20 Mich. 452, 4 Am. Rep. 400.

"In many instances states and municipalities have in late years seen fit to enter upon projects to promote the public welfare which in the past have been considered entirely within the domain of private enterprise." Green v. Frazier, 253 U.S. 233, 242, 40 S.Ct. 499, 502, 64 L.Ed. 878. But the considered legislation in respect to power is well within the view advanced in Rockingham County Light & Power Company v. Hobbs, 72 N.H. 531, 535, 58 A. 46, 48, 66 L.R.A. 581, as follows: "All these considerations tend to show that the use of land for collecting, storing, and distributing electricity, for the purposes of supplying power and heat to all who may desire it, is a public use, similar in character to the use of land for collecting, storing, and distributing water for public needs—a use that is so manifestly public 'that it has been seldom questioned and never denied.' I Lew.Em.Dom., § 173."

The planned private use of the power developed from storing water and employed in producing electric energy is not a forbidden aid to the users so long as it is an incidental arrangement in obtaining for the public the benefit of the storage. From the economic viewpoint coal, petroleum products, water fall, and in less degree wood and alcohol are the chief sources of the essentials of light, heat and power. The more abundant and serviceable the water fall, the less is there need for the other sources. The more of it the state may obtain through development, the less are the needs for importing the other sources. The greater its supply, the more its cost is lessened and thus a more self-supporting existence is furnished. Moreover, development of resources which may produce a supply beyond the needs of state consumption and furnish a supply...