Faulkner v. City of Keene

CourtSupreme Court of New Hampshire
Citation155 A. 195
PartiesFAULKNER et al. v. CITY OF KEENE.
Decision Date05 May 1931
155 A. 195


Supreme Court of New Hampshire. Cheshire.

May 5, 1931.

155 A. 196

Exceptions from Superior Court, Cheshire County; Scammon, Judge.

Petition by John C. Faulkner, Jr., and others, executors, against the City of Keene. Findings for plaintiffs, and defendant filed bill of exceptions.

Exceptions overruled.

Petition under Laws 1929, c. 86. The allegations are that the plaintiffs have contracted to sell certain land in Keene to the Standard Oil Company for a filling station, upon condition that the necessary consent of the city to such use be obtained. The land in question is lower than the premises surrounding it, so that the flow of liquids from the premises is effectually prevented by the natural contour. The plan is to store gasoline in underground metal tanks, and kerosene and lubricating oils in a properly constructed

155 A. 197

building. The interested parties applied to the mayor and aldermen for a license under Pub. Laws 1926, c. 162, § 30. This was refused.

By the zoning ordinance of Keene, the first twenty-five feet of the premises adjacent to the street is restricted to residential uses, the next one hundred feet to business uses, and the balance may be used in industry. The proposal is to establish the plant on the second tract, with approaches across the. first. The prayer is for an adjudication of the right to make the described uses of the property.

The city answered alleging the unconstitutionality of the statute, and denying that it claims any rights adverse to the plaintiffs, but asserting its intention to enforce limitations on the plaintiffs' use, claimed to be imposed by Pub. Laws 1926, c. 162, § 30, and by the zoning ordinance. It further claimed that the action of the mayor and aldermen in refusing a license is not open to review, and that since the plaintiffs petitioned for a license they are now estopped to claim a right to proceed without license.

The court (Scammon, J.) ruled against the positions thus taken, and upon a trial of the facts concluded "that the proposed storage and keeping for sale were in buildings specially adapted therefor, and that the premises were to be maintained in such a way as to effectually, prevent the overflow beyond the premises where it was kept, that no portion of said premises was to be occupied as a dwelling, and that the entire contemplated construction and maintenance were in compliance with the conditions described by sections 29 and 30 of chapter 162, and that the presentation of said petition to the Mayor and Board of Aldermen was not required."

It was also found "that the use of the twenty-five foot strip for ingress and egress to lots B and C is a reasonable use of said strip and its use as such not to be inconsistent with the act of the Zoning Board designating it as a single residence district."

The defendant's bill of exceptions to these various rulings and findings was allowed.

Chester B. Jordan, of Keene, for plaintiffs.

Henry C. Arwe, of Keene, for defendant.


Various objections are urged both against the form and the substance of the relief sought in this proceeding. These may be stated in the following order: I. That the Declaratory Judgment Act (Laws 1929, c. 86) is unconstitutional. II. That the city does not make any claim of right which is subject to adjudication under said act. III. That the plaintiffs, having petitioned for a license under Pub. Laws 1926, c. 162, § 30, are now estopped to claim the right to act under the provisions of section 29 without license. IV. That the proposed construction is not within the provisions of section 29. V. That the action of the mayor and aldermen is not open to review. And VI. That the proposed use is in conflict with the defendant's valid zoning ordinance.

I. The claim that Laws 1929, c. 86, is unconstitutional has been urged upon two grounds. It is asserted that the act would deny a jury trial or recourse to the Supremo Court on issues of law. Neither position is well taken. The act provides that "Any person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title, to determine the question as between the parties, and the court's judgment or decree thereon shall be conclusive." Id.

This act was in terms made an addition to chapter 316 of the Public Laws 1926. It is to be read and construed as a part of that chapter. So considered, its import is not doubtful. Its purpose is to make disputes as to rights or titles justiciable without proof of a wrong committed by one party against the other. The case proceeds to final judgment or decree precisely as any other litigation might. Exceptions may be taken during the trial, or questions of law may be transferred by the presiding justice sua sponte, under other provisions of the same chapter. Proceedings of the latter class have heretofore been taken, and have been acted upon in this court without question. Second National Bank v. Bank, 84 N. H. 342, 150 A. 737. It is therefore unnecessary to consider the novel proposition that the Legislature has no power to make the decision of a court of first instance final, both as to law and fact.

The objection as to jury trial is not open to the defendant as the case stands. The constitutional provision for a right to such trial "except in cases in which it has been heretofore otherwise used and practiced" (Const, pt. 1, art. 20) would seem to be applicable here. If so, and there be an issue of fact between the parties, either might claim the right, save in those exceptional cases, as for example an accounting or a controverted equity, where the right did not exist at common law. But since the defendant made no request for a jury trial in this case, there is no occasion to consider whether such a request, if made, should have been granted. The questions whether this defendant has any standing to assert a right to a jury trial (Wooster v. Plymouth, 62 N. H. 193), and whether there is such a

155 A. 198

right in this class of proceedings, are not decided.

Another aspect of the constitutional question is to be considered. Some things said in the opinion in Harvey v. Harvey, 73 N. H. 106, 59 A. 621, might indicate that the Constitution forbids such extension of jurisdiction as the act of 1929 contemplates. The declaration therein that the court cannot be empowered to give advice, save in the instances specified in the Constitution (article 74, pt. 2), is undoubtedly sound. The reasons therefor are set forth in the authority there cited. In re School Law Manual, 63 N. H. 574, 575, 4 A. 878, 879. "A prospective determination of the validity of these rules and forms, without notice and opportunity of hearing given to persons whose interests may be involved in the facts and the law of a particular case, would not be an exercise of judicial Dower. Cooley, Const. Lim. 91, 353, 354; Merrill v. Sherburne, 1 N. H. 199, 203, 204 [8 Am. Dec. 52]. Who will be entitled to notice, and what objections will be presented cannot now be ascertained. Questions which cannot be anticipated may arise, in cases that cannot be foreseen, concerning rights not yet. accrued, and persons not yet in existence."

It seems evident that these reasons had no application in the Harvey Case, which was a dispute between tine holder of a defeasible fee and the parties to whom it was to go over, as to the right of the former to deal with the title in a certain way. The refusal to consider the question may be justified upon the ground that jurisdiction to act in such a case had not then been conferred. But the implications that the Constitution forbids granting such jurisdiction, and that if the question were decided the decree would be merely advisory, do not appear to be tenable.

The advice-giving power of the court is limited by the Constitution, by virtue of the provisions that all interested parties are entitled to be heard, and by unprejudiced judges. Where there is adequate provision for notice and hearing, and those adversely Interested are brought before the court, these constitutional limitations do not apply.

The Constitution does not prohibit the fixation of rights, as between parties who are in court. What it does forbid is a failure to give all interested parties notice and an opportunity to be heard before any decree affecting their rights is made. Beyond this there is no constitutional limitation upon the stage of the controversy at which the courts may be appealed to by the contending parties.

"To compare the claims of parties with the laws of the land before established, is in its nature a judicial act." Merrill v. Sherburne, 1 N. H. 199, 204, 8 Am. Dec. 52. And when a statute provides that a decree shall settle an issue as between the parties, it cannot well be asserted that rights are not adjudicated upon and conclusively settled by a decree thereunder. The result of such a proceeding is not merely advice, but an authoritative determination of rights. A judgment determining rights "will be conclusive without service of any process for its enforcement." Walker v. Walker, 63 N. H. 321, 327, 56 Am. Rep. 514.

Even the federal court, which has rendered opinions, if not decided cases, adversely to the validity of declaratory judgment acts, now holds that, "While ordinarily a case or judicial controversy results in a judgment requiring award of process of execution to carry it into effect, such relief is not an indispensable adjunct to the exercise of the judicial function." Fidelity National Bank & Trust Co. v. Swope, 274 U. S. 123, 132, 47 S. Ct. 511, 514, 71 L. Ed. 959. This point was reaffirmed in Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 725, 49 S. Ct. 499, 73 L. Ed. 918.

In several instances this remedy has heretofore been treated as available in this state. Process to compel unwilling claimants to forthwith litigate their claims has been used since early...

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66 cases
  • Sirrell v. State, 2001–063.
    • United States
    • Supreme Court of New Hampshire
    • May 3, 2001
    ...to rights or titles justiciable without proof of a wrong committed by one party against the other." Faulkner v. Keene , 85 N.H. 147, 149, 155 A. 195 (1931).The remedy of declaratory judgment affords relief from uncertainty and insecurity created by a doubt as to rights, status or legal rela......
  • Beatty v. Chicago, B. & Q. R. Co., 1915
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    • United States State Supreme Court of Wyoming
    • December 10, 1935
    ...Grove, 19 A. L. R. 1116; Jefferson County v. Chilton, (Ky.) 33 S.W. 601; Stewart v. Harten, (Nebr.) 249 N.W. 552; Faulkner v. City, (N. H.) 155 A. 195; Green v. Company, (N. C.) 167 S.E. 38; Girard Trust Company v. Frumblay, (Penn.) 140 A. 506; Miller v. Miller, (Tenn.) 261 S.W. 965. The ac......
  • Duncan v. State, 2013–455
    • United States
    • Supreme Court of New Hampshire
    • August 28, 2014
    ...by the court, but brought by parties into court for trial and judgment." Id. at 575, 4 A. 878.In Faulkner v. Keene, 85 N.H. 147, 151, 155 A. 195 (1931), we opined that a prior version of RSA 491:22 was consistent with Part II, Article 74 because it did not allow the court to issue advisory ......
  • Tirrell v. Johnston
    • United States
    • Supreme Court of New Hampshire
    • March 6, 1934
    ...1929, c. 86) may be taken. Burghess v. Attorney-General, [1911] 1 K. B. 410, quoted with approval in Faulkner v. Keene, 85 N. H. 147, 154, 155 A. 195. It was agreed at the argument that there will be no occasion for the issuance of an injunction in any event. When the law is settled it will......
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