Duncan v. Town of Jaffrey

• Decision Date: 30 October 1953
• Citation: 98 N.H. 305,100 A.2d 163
• Parties: DUNCAN v. TOWN OF JAFFREY.
• Court: New Hampshire Supreme Court

Page 163

100 A.2d 163

98 N.H. 305

DUNCAN v. TOWN OF JAFFREY.

Supreme Court of New Hampshire.

Submitted Oct. 6, 1953.

Decided Oct. 30, 1953.

Charles W. Tobey, Jr., Concord (by brief), for plaintiff.

Walter H. Gentsch, East Jaffrey, and Upton, Sanders & Upton, Concord (by brief), for defendant.

KENISON, Chief Justice.

The decision in Bretton Woods Co. v. Carroll, 84 N.H. 428, 151 A. 705, is authority for the proposition that an abatement petition is not the proper remedy in a situation of this kind. While the plaintiff might have sought relief by seasonably seeking to enjoin the alleged unconstitutional taxation, this remedy would not now be available because of lapse of time. Clough v. Verrette, 79 N.H. 356, 359, 109 A. 78. Since it is understood that the parties seek a determination of the question presented and this is a matter of some public importance to municipalities having capital reserve funds, in accordance with the usual practice, we proceed to the consideration of the merits of the controversy without further attention to the form of the procedure used. Tirrell v. Johnston, 86 N.H. 530, 532, 171 A. 641; Lisbon School District v. School District, 96 N.H. 290, 292, 75 A.2d 409; Clapp v. Jaffrey, 97 N.H. 456, 461, 91 A.2d 464.

The capital reserve fund statute, Laws 1943, c. 160, as amended and extended by subsequent legislation, was considered in Leavitt v. North Hampton, 98 N.H. 193, 96 A.2d 554, but its constitutionality was not questioned in that case. The purpose of the statute was to enable municipalities to use surplus money and annual appropriations for specific capital improvements at a future date. The plaintiff claims that a public capital improvement can be financed by borrowing but a town cannot set aside money each year for the same purpose. His argument is stated as follows: 'It is true that public capital improvements can be financed by bond issue so that, over a limited period of years, the residents of a community pay for such an improvement. However, in such cases, the capital improvement is constructed in the beginning, and those paying for the improvement each year have the opportunity to receive the benefits of such capital improvement. In the case of the creation of a capital reserve fund, the taxpayer may be required to pay his share thereof for many years, and may never receive the benefit of a proposed building project. Accordingly, his annual tax payments, over a period of years, would not be his share of the cost of government.' No authority is cited for this statement and we have discovered none. Inasmuch as Article 36, Pt. I of our Constitution recognizes economy as 'a most essential virtue' and economy in local government is a proper public purpose, Opinion of the Justices, 88 N.H. 500, 508, 190 A. 801, it cannot be said that the capital reserve fund act is without constitutional basis. There is nothing in the statutes regulating the powers of cities and towns which prevents a municipality from operating under a 'pay as you go' policy.

Article 12, Pt. I of the state Constitution provides that every member of the community is entitled to governmental protection and therefore is 'bound to contribute his share in the expense of such protection'. The plaintiff argues that this provision precludes a municipality from taxing a member of the community for a public project from which he does not receive a benefit or a like benefit compared with other members of the community. Specifically since the plaintiff has no children of school age and may never receive any...