Leavitt v. Town of North Hampton

• Court: Supreme Court of New Hampshire
• Citation: 96 A.2d 554,98 N.H. 193
• Parties: LEAVITT et al. v. TOWN OF NORTH HAMPTON et al.
• Decision Date: 05 May 1953

Page 554

96 A.2d 554 98 N.H. 193 LEAVITT et al.
v.
TOWN OF NORTH HAMPTON et al. Supreme Court of New Hampshire. May 5, 1953.

William P. Fowler, North Hampton, for the plaintiff.

Edward R. Hale, Arthur L. Brown and Paul A. Good, Boston, Mass., Brown orally, for a majority of the Water Committee.

George R. Scammon, Exeter, for intervenors.

KENISON, Chief Justice.

As a preliminary matter of procedure, it may be noted in this type of controversy that a petition for a declaratory judgment is a proper method of determining the legality of the proposed expenditure of public funds. Chronicle & Gazette Pub. Co. v. Attorney-General, 94 N.H. 148, 150, 48 A.2d 478, 168 A.L.R. 879; Warren Kay Vantine Studio v. City of Portsmouth, 95 N.H. 171, 59 A.2d 475. The fact that injunctive proceedings might be an alternative method of determining the question does not preclude the use of declaratory judgment procedure, Clapp v. Jaffrey, 97 N.H. 456, 91 A.2d 464. See School District No. 3 of Lisbon v. District, 96 N.H. 290, 292, 75 A.2d 409. Nor can any valid objection be raised to an appropriation of town funds which is made conditional upon the determination of its legality by the Supreme Court. Reed v. Pittsfield School District, 91 N.H. 209, 16 A.2d 704; City of Keene v. Martin, 96 N.H. 504, 506, 79 A.2d 13.

All of the votes of the town of North Hampton purport to be taken under Laws 1943, chapter 160, as amended, which provides that towns may establish capital reserve funds. Section 1 of the act reads as follows: 'Any town * * * as provided by section 2, may raise and appropriate money for the establishment of a capital reserve fund for the financing of all or part of the cost of (a) the construction, reconstruction or acquisition of a specific capital improvement, or the acquisition of a specific item or specific items of [98 N.H. 196] equipment, or (b) the construction, reconstruction, or acquisition of a type of capital improvement or the acquisition of a type of equipment.' Section 8 of the act provides that the trustees of trust funds shall have custody of the capital reserve fund and section 9 provides that expenditures from the fund shall be made only in connection with the purposes for which the fund was established or as amended as provided by section 10. Section 10 of the act provides that no change shall be made in the purpose for which a capital reserve fund is established until authorized by a vote of two-thirds of all the voters present and voting at an annual town meeting. This statute is one of the postwar planning statutes which were adopted by a majority of the states to enable municipalities to use surplus money for specific capital improvements. 1973 Annual Survey of American Law, 219. Municipal Year Book, 1946, pp. 191, 192; Fordham, Local Government Law (1949) 433. Unlike similar statutes in other states the New Hampshire act contains no definition of 'capital improvement' or 'of a type of capital improvement.' The original capital reserve act has been extended and broadened on several occasions but none of the subsequent amendments attempt to define capital improvements. Laws 1945, c. 35; Laws 1947, cc. 8, 91; Laws 1951, c. 106. In the absence of any definition of a capital improvement...