Green v. Shaw
| Decision Date | 30 September 1976 |
| Docket Number | No. 7355,7355 |
| Citation | 116 N.H. 562,364 A.2d 1265 |
| Parties | Richard P. GREEN et al. v. John SHAW et al. |
| Court | New Hampshire Supreme Court |
Boynton, Waldron, Dill & Aeschliman and Charles B. Doleac, Portsmouth, (Richard E. Dill and Charles B. Doleac, Portsmouth, orally), for plaintiffs.
Fisher, Parsons, Moran & Temple, Dover (Harold D. Moran, Dover, orally), for defendants.
Bill in equity brought by city councilman and taxpayers of Rochester against the mayor, accountant, and commissioner of public works of that city seeking relief from various actions of defendants which plaintiffs claim were unlawful. In Green v. Shaw, 114 N.H. 289, 319 A.2d 284 (1974), this court sustained plaintiffs' exceptions to the granting of defendants' motion to dismiss their bill and the matter was remanded to the superior court. In the course of that opinion (114 N.H. at 292, 319 A.2d at 285) it was stated: 'The acts of the newly elected mayor and council may by ratification have rendered moot some of the alleged unauthorized actions of the defendants.'
On January 2, 1974, prior to the remand, the city council by a two-thirds vote had adopted a resolution validating and ratifying the purchase by Mayor John Shaw of the so-called LaChance property for use as a future school site for the sum of $15,000.
On September 3, 1974, after the remand, the city council adopted by a vote of ten for and one against (there are 12 councilmen) a resolution indorsing and approving certain actions of the mayor and certain members of the council. They are the following: (1) the extension of water mains; (2) the granting of additional street lights locations; (3) charges paid for reregistration of voters as ordered by the New Hampshire State Legislature; (4) charges paid for rewiring of City Hall.
Defendants filed a motion in superior court to have withdrawn as moot all allegations in plaintiffs' bill pertaining to the matters covered by those two resolutions. In addition defendants also sought the withdrawal of the issues of alleged unauthorized expenditures from the revenue surplus account and any other action which the city council has the power by resolution or ordinance to regulate.
The matter was referred to Amos N. Blandin, Jr., judicial referee, who held a preliminary hearing limited to the issues arising out of the alleged ratifications. The referee made certain findings and rulings and transferred without ruling, in advance of trial on the merits, the question 'whether, upon the facts found, ratification existed as a matter of law,' thus rendering moot any or all of these issues raised by the plaintiffs' bill in equity. Plaintiffs' exceptions to the limiting of the hearing by the referee to the matter of ratification; to the transferring of that issue in advance of trial on the merits; to certain findings and rulings; and to the denial in part of their motion to modify the decree as well as other exceptions were reserved and transferred by Mullavey, J.
Also reserved and specifically transferred was plaintiffs' exception to certain comments made by Mullavey, J., at hearings on the denial of plaintiffs' motion to dismiss their bill in equity which was accompanied by a letter of explanation signed by the individual plaintiffs. The court's comments were directed at the reasons advanced by the plaintiffs for choosing this course of action.
The judicial referee made the following findings of fact which were supported by the evidence. '1. The temper of the majority of the council voting at the so-called ratification meetings of January 2, 1974 and September 3, 1974, was such that it fully intended to ratify all the defendant mayor and council's disputed acts, regardless of what laws, ordinances, city charter and council procedural rules might have been violated . . .. 2. So determined was the majority's attitude that had they known any other details regarding the violations . . . than those of which they were aware, the vote would still have been to ratify . . ..
'4. (However, the majority) was well aware, through common knowledge, the media, discussion outside of the ratification meetings . . . that there might have been violations of a number of statutes, ordinances, city charter provisions and regulations. The...
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...in the actions taken on behalf of the city which pertain to matters within the city's power to perform." Green v. Shaw, 116 N.H. 562, 565, 364 A.2d 1265, 1267 (1976). Accordingly, the State or a municipality can be estopped by the ratified conduct of government officials. The party assertin......
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