Lisbon Vill. Dist v. Town of Lisbon

• Decision Date: 02 June 1931
• Citation: 155 A. 252
• Parties: LISBON VILLAGE DIST v. TOWN OF LISBON.
• Court: New Hampshire Supreme Court

155 A. 252

LISBON VILLAGE DIST

v. TOWN OF LISBON.

Supreme Court of New Hampshire. Grafton.

June 2, 1931.

Transferred from Superior Court, Grafton County; Young, Judge.

Petition by the Lisbon Village District against Town of Lisbon. Case transferred from trial term without ruling.

Case discharged.

Petition, brought under the Declaratory Judgment Statute (Laws 1929, c. 86). The defendant claims the right to tax certain property of the plaintiff, and the plaintiff denies the right. For the purposes of the case, and without objection by the parties, the facts set forth in the petition were assumed to be true by Young, J., who transferred the case without ruling.

The property in question consists largely, if not entirely, of a waterworks system, owned and operated by the plaintiff, which is a municipal corporation located within the corporate limits of the defendant town. The property is partly within and partly outside the district boundaries.

The defendant taxed the entire property, and the plaintiff paid the tax upon the defendant's agreement to refund whatever the court should determine was illegally assessed. It was also agreed that the plaintiff had taken all steps necessary to perfect a tax abatement appeal.

Fred S. Wright, of Woodsville, for plaintiff.

Clark B. Frost, of Lisbon, for defendant.

PEASLEE, C. J.

The plaintiff has mistaken the form of remedy available. The declaratory judgment act (Laws 1929, c. 86) was designed to supply deficiencies in legal procedure which existed before the enactment of the statute. Faulkner v. Keene, 84 N. H. —, 155 A. 195. It was not intended as a substitute for ample remedies in use before its adoption. To borrow the language of chancery, where there is another plain, adequate, and complete remedy available, the statute cannot be invoked. The issue here being the plaintiff's tax liability, the petition for an abatement affords an adequate remedy. Bretton Woods Co. v. Carroll, 84 N. H. 428, 151 A. 705.

But the proceeding, otherwise properly brought, is not to be dismissed because erroneously entitled. Faulkner v. Keene, supra. It is agreed in this case that the plaintiff has taken all steps necessary to perfect a tax abatement appeal; and the payment of the tax was made under an agreement of the town to repay all that the court should determine to have been illegally exacted. The proceeding is to be treated as a tax abatement appeal.

By the long-established policy of our law, property publicly owned, used for public purposes and located within the territory of the holder, is not taxable. In order to make it taxable, there must be an express provision to that effect, or language open to no other reasonable construction. Grafton County v. Haverhill, 68 N. H. 120, 40 A. 399. The plaintiff district is a municipality to which this rule applies. Canaan v. Enfield Village Fire District, 74 N. H. 517, 533, 70 A. 250.

The defendant's contention that because the plaintiff's territory lies within the limits of the town therefore the plaintiff's proi>erty is taxable by the town cannot be sustained. In cases where jurisdiction over certain areas is divided, and one governmental agency discharges one public function while another agency is charged with different duties in the same territory, the rule of exemption applies to both. If this were not so, town property publicly used would be taxable by the county and vice versa. The decision that they are not so taxable (Grafton County v. Haverhill, 68 N. H. 120, 40 A. 399) establishes the principle which controls here. In this matter the normal relation of district to town is comparable to that of town to county. They are all merely agencies of the state.

The taxation of the plaintiff's property held for this particular use, but located outside its territory, is now governed by express statutory provisions. "Property held by a city, town or district in another city or town for the purpose of a water supply, if yielding no rent, shall not be liable to taxation therein, but the city, town or district so holding it shall annually pay to the city or town in which such property lies an amount equal to" certain taxes. Pub. Laws 1926, c. 60, § 10.

It has already been determined that this statute provides for a constitutional exemption. Keene v. Town of Roxbury, 81 N. H. 332, 126 A. 7.

Argument has been advanced that there is error in the conclusion in that case that water rates are not rent or revenue in the nature of rent. Laws 1911, c. 40. The question is not open for reconsideration here. The statute was re-enacted without change after that decision was announced (Pub. Laws 1926, e. 60, § 10), thus adopting "its prior judicial interpretation." Bilodeau v. Ins. Co., 84 N. H. 405, 407, 151 A. 481, 482, and cases cited.

Since it is settled that public property held for public use is not taxable within the jurisdiction where it is held and its use is enjoyed, and the statute provides that, if it be located elsewhere and is of this class, it is not taxable, but is only subject to certain charges, it is plain that it is not taxable under any circumstances.

As to the statutory liability concerning extraterritorial property, the plaintiff's claim is that, since its property is within the territorial limits of Lisbon, it is not in "another city or town." If this were conceded to be the true construction of the statute, it would follow...