Kelley v. Kennard

• Decision Date: 01 June 1880
• Parties: Kelley & A. v. Kennard & A.
• Court: New Hampshire Supreme Court

60 N.H. 1

Kelley & A. v. Kennard & A.

Supreme Court of New Hampshire

June 01, 1880

HILLSBOROUGH

A vote concerning the construction of a highway, passed at a meeting of the inhabitants of a city (G. L., c. 46, s. 18), is merely advisory, and does not control the action of the city councils.

The number and relative position of paths convenient and suitable for travel on a public bridge are not fixed by law.

A town may make an appropriation necessary for building a convenient public bridge, with a proviso that if enough more to enable the town to build a more convenient one of a certain design is contributed by individuals, and given to the town, the more convenient one shall be built.

PETITION for a temporary injunction, granted by a justice in vacation and adjourned into the law term. Facts agreed. The plaintiffs are citizens, voters, and tax-payers, and the defendants are a special committee of the city government, of Manchester. December 19, 1879, the mayor and aldermen laid out a highway fifty feet wide in extension of Bridge street across Merrimack river. February 17, 1880, the city councils resolved that a special committee be appointed, with full power to contract for the building of a bridge across the river on Bridge street, at a cost not exceeding

$50,000 according to a plan presented by the city engineer, adopted by the city councils, and known as the middle level plan. The defendants are the committee.

Section 18 of chapter 46 of the Gen. Laws provides that "The mayor and aldermen shall issue their warrant for a general meeting of the inhabitants, for any constitutional or legal purpose, whenever requested to do so in writing by one hundred legal voters." Under this statute there was a meeting of the inhabitants of Manchester May 8, 1880, who voted "that in their opinion said bridge should be built upon the lower level, as it is called, or near thereto, and substantially thereon, and at as little expense as it can be done and made convenient for all parties, safe and enduring and that the city government be requested and instructed so to construct said bridge, if it can legally be done; that the plan proposed by the committee of the city government was unwise and far too expensive, and if unauthorized, as in the opinion of this meeting it was, the mayor is requested to employ counsel, if necessary, and secure a perpetual injunction * * * upon the contract and the parties thereto, and any and all persons attempting to act under it; that not more than $20,000 or $25,000 should be added to the tax-list this year for the construction of such bridge, and the balance be raised on credit." And the meeting appointed a committee to represent the action of the meeting to the city government, and to confer with them or any committee appointed by them upon the speedy erection of such bridge.

June 1, 1880, by vote of the city councils, the defendants were authorized and directed to contract for an iron bridge across the river, and iron bridges across the canals and over the street on the west side of the river, with iron approaches, all the bridges and approaches to be forty feet wide, and to make such changes in the middle level plan, "in accordance with this resolution," as in their judgment would be for the best interests of the city, the bridges to be finished at an expense to the city not exceeding $60,000; and the committee were "authorized to contract for such a bridge across the river as will provide a roadway or lower deck as a way to the Amoskeag Manufacturing Company and the Stark Mills, provided said companies contribute the sum of $7,000 for the same."

H. S. Clark, for the plaintiffs.

The instructions of the citizens' meeting were mandatory upon the city government, and should have been followed. Section 18 of c. 46 of the Gen. Laws was copied from the charter of the first New Hampshire city. Laws of 1846, c. 384, s. 12. In towns money is appropriated by a direct popular vote. The legislature were reluctant to take from the voters the immediate control of their municipal affairs by incorporating cities. And by this clause,

inserted in the first city charter, the power of town legislation was reserved and continued for occasions when the people should choose to exercise it.

The city has no authority to build more than one highway across the river, because only one was laid out.

The city has no authority to build a private way across the river, or to build a private way through a public bridge, or to loan or give its money or credit, directly or indirectly, for the benefit of any corporation having for its object a dividend of profits. Milhau v. Sharp, 15 Barb. 193; People v. Compton, 1 Duer 512; Constitution, Art. 5. A simple arithmetical computation shows the $7,000 will not pay one half the cost of the lower deck, which is to be a private way.

The city cannot make a highway, or vary the construction of a bridge or highway, upon the offer of money by any person or corporation, but must construct the same with sole reference to the public good. Dudley v. Butler, 10 N.H. 281; Gurnsey v. Edwards, 26 N.H. 224.

The city councils could not authorize their committee to make the contract for building the bridge, or to determine or alter the plan. Such duties, requiring the exercise of discretion and judgment, could not be delegated to the committee. Gillis v. Bailey, 21 N.H. 150; Monadnock R. R. v. Peterborough, 49 N.H. 281; Zottman v. San Francisco, 20 Cal. 90; Oakland v. Carpentier, 13 Cal. 540; Peterson v. Mayor, 4 E. D. Smith 413; Brady v. Mayor, 2 Bosw. 173; Thompson v. Schermerhorn, 2 Seld. 92---S. C., 9 Barb. 152. Patten, Copeland, Cross, and Sulloway, for the defendants.

DOE, C J.

By express statutory provisions, the administration of all the fiscal, prudential, and municipal affairs of a city, and the government thereof, are vested in the city councils; and all powers vested by law in towns, or in the inhabitants thereof, are exercised by the city councils. Perry v. Keene, 58 N.H. 40. These provisions are not expressly modified by Gen. Laws, c. 46, s. 18, which requires the mayor and aldermen to call a general meeting of the inhabitants for any purpose not unconstitutional or otherwise illegal, when requested to do so, in writing, by one hundred legal voters. And there is not sufficient ground for holding this section to be an implied qualification of the sections which transfer to city councils the powers of municipal legislation and administration. If the legislature had intended to reserve a popular right of resuming and exercising these powers, it is to be inferred that provision would have been made for organization, official oaths, check-list, and records, and for executing the votes of the meeting, or requiring the city government to execute them. The complicated and conflicting system would require regulation, which the law does not

furnish. The practical difficulties in the way of carrying on the representative government of a city, under an undefined popular power of occasional or constant suspension and control, are great and obvious. And the absence of statutory methods of obviating them is satisfactory evidence of the legislative intention. The vote passed at the meeting of inhabitants, instructing their representatives in the city legislature in regard to this bridge, was merely advisory, as would have been a vote of the same persons instructing their representatives in the state legislature.

As the public convenience may require a sidewalk as well as a carriage track in a highway (Graves v. Shattuck, 35 N.H. 257, 270), so it may require two carriage tracks. And the law does not require such tracks to be on the same level, nor forbid one to be built over the other. How many tracks there shall be, and what shall be their relative position, are questions of fact to be determined upon considerations of public convenience, and the statute requiring the highway to be suitable for the travel thereon. And the municipal decision of these questions is not subject to an appeal to this court on a bill in equity for an injunction. The case does not raise the question of the right of the public on an elevated railway, or other structure in a highway, to make a use of the land that was not contemplated when the owner's damages were assessed. The plaintiffs are not owners of land under or adjoining this new highway.

The highway across the river was unconditionally and legally laid out; and, a bridge being necessary for the public use of the way, the city can be compelled by indictment to perform its duty of making the way passable by building a bridge which will be a part of the highway on which it is built. G. L., c. 71, s. 1; c. 1, s. 25; State v. Canterbury, 28 N.H. 195, 228, 232.

The plaintiffs...