Laconia Water Co. v. City of Laconia

• Court: New Hampshire Supreme Court
• Writing for the Court: KENISON
• Citation: Laconia Water Co. v. City of Laconia, 112 A.2d 58, 99 N.H. 409 (N.H. 1955)
• Decision Date: 11 March 1955
• Parties: LACONIA WATER COMPANY v. CITY OF LACONIA.

Page 58

112 A.2d 58

99 N.H. 409

LACONIA WATER COMPANY v. CITY OF LACONIA.

Supreme Court of New Hampshire.

Argued Feb. 2, 1955.

Decided March 11, 1955.

Nighswander, Lord & Bownes, Arthur H. Nighswander, Laconia, for plaintiff.

A. Gerard O'Neil, City Sol., Laconia, and John N. Nassikas, Spe. Counsel, Manchester, for defendant.

KENISON, Chief Justice.

Revised Laws, chapter 56, section 4, provides that the two-thirds vote of a city council to acquire a municipal water works must be 'confirmed by a majority of the qualified voters at a regular election or at a special meeting duly warned in either case. * * *' The issue in this case is whether the vote at the special meeting of June 22, 1954, at which a majority of those voting, but less than a majority of those qualified to vote, was a confirming vote within the meaning of R.L. c. 56, § 4. This is a problem of statutory construction bearing upon the legality of a proposed expenditure of public funds which may be properly determined in a declaratory judgment action. Leavitt v. Town of North Hampton, 98 N.H. 193, 96 A.2d 554.

'In the absence of express regulation, a proposition is carried in a town-meeting, or other legislative assembly, by a majority of the votes cast.' Attorney-General v. Shepard, 62 N.H. 383, 384. This has been regarded as 'the leading case' on the subject, Opinion of the Justices, 98 N.H. 530, 531, 98 A.2d 635, and states the general rule here as well as elsewhere. Attorney-General v. Bickford, 77 N.H. 433, 434, 92 A. 835; 3 McQuillin, Municipal Corporations (3rd ed.) s. 12.18; Annotation 131 A.L.R. 1382. The basis for this rule is that the elective franchise is to be exercised affirmatively. 'Silence on a part of the members not voting cannot be counted against the express voice of another part voting.' Richardson v. Union Congregational Society, 58 N.H. 187, 188. The same thought was expressed in Cashman v. City Clerk of Salem, 213 Mass. 153, 155, 100 N.E. 58, 59, in the following language: 'Elections must be settled as a practical matter by those manifesting interest enough to vote. Failure on the part of some of the electorate to take the trouble to express their views by depositing their ballots cannot stop the machinery of government. Apathy is not the equivalent of open opposition.' See Opinion of the Justices, 98 N.H. 530, 533, 98 A.2d 635. The practical working of the elective system necessarily requires that those who do not vote be considered as acquiescing in the result declared by a majority of those who do vote. The 'great weight of authority holds that where a statute provides for a vote of 'a majority of the voters', 'a majority of the legal voters', 'a majority of the qualified voters', etc., all that is required is a majority of those actually voting, unless a contrary legislative intention and purpose is very clearly expressed.' Munce v. O'Hara, 340 Pa. 209, 211, 16 A.2d 532, 533, 131 A.L.R. 1379.

The plaintiff argues that R.L. c. 56, § 5, relating to the acquisition of utilities by towns which requires a favorable vote by 'two thirds of all the voters present and voting' indicates that the test for cities was not intended to be the same as for towns and that the general rule should not apply. It is the plaintiff's position that the legislative history of the two sections shows that the Legislature did not intend 'majority of the qualified voters' to mean majority of those present and voting and if they had, they would have said so. Plaintiff claims that the statute is clear and unambiguous and means those who were eligible or qualified to vote at the meeting whether they did or not. While these arguments are not tenuous and do have merit, the course of judicial decisions indicate that from an early date they have been rejected as persuasive evidence of legislative intent in cases of elections, bond issues and referendums. Cass County v. Johnston, 95 U.S. 360, 24 L.Ed. 416; Knox County v. Ninth Nat. Bank, 147 U.S. 91, 13 S.Ct. 267, 37 L.Ed. 93. Cf. In re Opinion of the Justices, 86 N.H. 604, 171 A. 443. In construing similar language in Board of Supervisors of Carroll County v. Smith, 111 U.S. 556, 565, 4...