Holt v. Town of Antrim

• Decision Date: 11 March 1887
• Parties: HOLT and others v. TOWN OF ANTRIM.
• Court: New Hampshire Supreme Court

9 A. 389

64 N.H. 284

HOLT and others

v. TOWN OF ANTRIM.¹

Supreme Court of New Hampshire.

March 11, 1887.

Reserved case from Hillsborough county.

Bill in equity by tax-payers in Antrim against that town and the Antrim Academy for an injunction to restrain the defendants from carrying into effect certain votes of the town passed at the annual meeting, 1884, recited in the bill substantially as follows: (1) That the town build an academy building upon land donated to the Antrim Academy Association by D. M. Weston, to cost not exceeding $10,000, whenever $15,000 is given to this association as a permanent fund, and when the trustees of said academy association shall have contracted with responsible parties with ample sureties to build and complete said building according to plans and specifications furnished by said trustees; (2) to instruct the selectmen to hire a sum not to exceeed $10,000 to build an academy building, when the conditions of the foregoing vote are complied with, said sum to be paid to the trustees; (3) that the committee be chosen by the trustees of the academy, and that they shall have the same powers as though chosen by the town. These votes were passed under the supposed authority of chapter 202, § 5, Laws 1883, and the Antrim Academy Corporation was organized under the charter granted by said act. The plaintiffs claim that section 5 of the act is unconstitutional, and that said votes are illegal, and unauthorized by any law of the state. The defendants demurred to the bill.

George B. French, for plaintiffs.

C. H. Burns, for defendants.

BINGHAM, J Section 5, c. 202, Laws 1883, authorizing the town of Antrim to raise $10,000 by loan or taxation "for the purpose of erecting a school building," and to give a perpetual lease of the same to a corporation called "Antrim Academy," "for school purposes, without payment of rent," is to be so construed, if it reasonably may be, as to be consistent with a presumed legislative intent not to give an unconstitutional and void sanction to taxation for a private purpose. Opinion of Justices, 41 N. H. 555; Cooley, Const. Lim. 184, 185; 2 Dill. Mun. Corp. (3d Ed.) 8 786; Cooley, Tax'n, (2d Ed.) 55, 103; Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. Rep. 442; Weistner v. Douglas, 64 N. Y. 91, 101, 103.

Local education is a local purpose for which legislative power may be delegated to towns. State v. Hayes, 61 N. H. 264. The amount of money to be raised for school-houses and other educational purposes is determined, under some restrictions, by municipal corporations. Sargent v. School-District, 63 N. H. 528, 532, 533, 2 Atl. Rep. 641. A tax raised for a free public school and a free public school-house is raised for a public purpose, and the purpose is not made private by a mere exaction of tuition. The legislature could require the payment of tuition in the common schools. Land taken for a highway is taken for a public use, whether the use is free, as in ordinary roads and bridges built by towns, or subject to tolls, as in other highways (turnpikes, toll-bridges, ferries, railroads, and canals) constructed by other corporations. Land may be taken for public grist-mills, though toll is to be paid, and for public aqueducts, gas-pipes, and telegraphs, though the water and gas are to be sold, and the transportation of messages is not to be free. In these instances, the legal test of the public character of the use is not a right of enjoying the use of the land wholly at the public expense, but a common and equal right, free from unreasonable discrimination. Perry v. Keene, 56 N. H. 514, 535, 539, 543; Cooley, Tax'n, (2d Ed.) 119-124. When not controlled by the exercise of judicial and executive power, the municipal and official management of free roads, as well as the corporate management of toll roads, may infringe public rights of use. But as the possibility of such remediable wrong does not prohibit the legislative exercise of the power of eminent domain for laying out, or the power of taxation for buying and building, such ways, so a possible violation of a public right of using the proposed public school-house in Antrim does not prohibit an appropriation of public money for the acquisition of the right. The common and equal privilege of use will be enforceable by adequate remedies. MoDuffee v. Railroad, 52 N. H. 430, 451. A school-house tax or a highway tax is not invalidated by the possibility that an injunction or other appropriate process of law will be necessary to prevent an illegal use of the house or way, or to maintain the public right of legal use. The lessee of the proposed school-house will hold it in trust for the public service to which it will be devoted by the statute and the constitution; and the court cannot assume that the trustee's duty will not be promptly, constantly, and thoroughly performed. In the act authorizing the lease there is no evidence of an unconstitutional purpose; and there is no legal presumption of such a purpose on the part of the legislature, the town, or the academy corporation.

A reservation of all rights necessary to make this Antrim appropriation a constitutional expenditure of public money is naturally and reasonably implied. The corporation accepting the lease will accept it with the legal construction, and subject to all the conditions, necessary to give validity to the statute and the lease. They will voluntarily assume every fiduciary obligation required to sustain the enjoyment of the common and equal right essential to the public character of the use for which they, as public servants, will be intrusted with the possession of the building. They will be as firmly bound by the restrictions imposed by the proviso of article 83, and all other constitutional requirements applicable to their trust, as if every item of their duty established by the paramount law were expressly and fully set forth in the lease. Under their supervision, the use of the property, conformed to all express and implied conditions, will be public and legal in every sense demanded by the property rights of tax-payers, and the educational rights of all entitled to the direct and indirect advantages of the tax.

In Evergreen Cemetery Ass'n v. Beecher, 53 Conn. 551, 5 Atl. Rep. 353, a petition for leave to take land for...