Sherburne v. City of Portsmouth

• Citation: 58 A. 38,72 N.H. 539
• Parties: SHERBURNE et al. v. CITY OF PORTSMOUTH.
• Decision Date: 03 May 1904
• Court: Supreme Court of New Hampshire

58 A. 38

72 N.H. 539

SHERBURNE et al.

v. CITY OF PORTSMOUTH.

Supreme Court of New Hampshire. Rockingham.

May 3, 1904.

Transferred from Superior Court Bill by Andrew Sherburne and others against the city of Portsmouth. Transferred from the superior court on question of law arising on defendants' demurrer. Demurrer overruled.

Bill in equity to restrain the defendant city from building a baseball park at the Plains, a public common containing about 11 acres, which was given to the city in 1716 for the drawing of a militia for the town and province, and has been used since for that purpose, and by the public generally for a playground; also to restrain the city councils from voting to fence the Plains "for the purpose of amusement and the better protection of city property." The bill alleges that the city councils intend, under this vote, to inclose the greater part of the Plains with a high board fence, and give the control of the premises to certain individuals, who will use them for a baseball park and athletic field, and will exclude all who do not pay an admission fee. The plaintiffs are taxpayers in Portsmouth, and own property adjoining the Plains. The questions of law arising upon the defendants' demurrer were transferred from the October term, 1903, of the superior court, by Pike, J.

John W. Kelley, for plaintiffs.

Ernest L. Guptill and Samuel W. Emery, for defendants.

YOUNG, J. The question of law raised by the demurrer is the power of the court to restrain city councils, at the suit of a taxpayer, from acting illegally. There is no uniform rule on the subject. In some jurisdictions the court has power to restrain city councils from committing an illegal act whenever it appears that the act will cause the plaintiff to suffer damage not common to the public, and that he is entitled to equitable relief. People v. Sturtevant, 9 N. Y. 263, 59 Am. Dec. 536. In other jurisdictions the court has no power to restrain city councils when they are acting in good faith. In these jurisdictions the remedy of a citizen to protect himself from their wrongful acts is a suit to restrain the officers of the city when they undertake to enforce them. Stevens v. Training School, 144 Ill. 336, 32 N. E. 962, 18 L. R. A. 832, .36 Am. St. Rep. 438; Des Moines Gas Co. v. Des Moines, 44 Iowa, 505, 24 Am. Rep. 136. In most jurisdictions, however, the power of the court to restrain city councils depends on the character of the business they are transacting. When the city councils are considering matters of a purely legislative character, the court has no power to restrain them. When their proposed action relates to the ordinary business affairs of the city, the court may restrain them, provided the proposed action is illegal, and the person whose rights are threatened is entitled to equitable relief. In this state it will not be enough to entitle a person to this relief to show that the proposed action is illegal and that he will be injured. He must also show that his injuries will be such as would entitle him to equitable relief in an action against an individual; that is, that his injuries will be irreparable, or that he has no adequate legal remedy, or has some other recognized ground for equitable relief. Brown v. Concord, 56 N. H. 375, 383. But it is not necessary, to entitle him to this relief, that he should suffer a loss not common to the public. Dill. Mun. Corp. §§ 916, 917. He is entitled to it when the city councils are acting in an administrative capacity, in all cases in which he could invoke it against an individual. People v. Dwyer, 90 N. Y. 402; State v. Commissioners, 39 Ohio St. 58; Valparaiso v. Gardner, 97 Ind. 1, 49 Am. Rep. 416; Springfield v. Edwards, 84 Ill. 626; Roberts v. Louisville, 92 Ky. 95, 17 S. W. 216. 13 L. R. A. 844; Spilman v. Parkersburg, 35 W. Va. 605, 14 S. E. 279; Jordan v. Deaton, 23 Ark. 704; Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070.

The duties of city councils are both legislative and administrative, for, in addition to their legislative duties, they are charged with the care of the money and other property of the city. Pub. St. 1891, c. 50, §§ 5, 6. When they are managing the property of the city, they are not making ordinances for its government, but are administering its affairs. Blood v. Electric Co., 68 N. H. 340, 342, 39 Atl. 335. Since the duties of city councils are in part legislative and in part administrative, if the court cannot restrain legislative, but may restrain administrative, officers, a holding that the court has no power to restrain city councils when they are acting in their legislative capacity, but may when they are acting in their administrative capacity, is but applying the ordinary rule used to establish the rights and liabilities of public officers who are authorized to exercise the functions of different departments of the state government, for the conduct of such officers while performing the duties of either department is governed by the rules of law applicable to officers of that department. Edes v. Boardman, 58 N. H. 580, 594-596; Boody v. Watson, 64 N. H. 162, 9 Atl. 794. The reason for this rule is obvious. The rules of law which govern both the business and the officers of the different departments of the state government were framed with reference to conducting the business of each department in the way to best promote the public welfare, but without special reference to the body of men who should perform the duties and exercise the functions of that department. So any officers exercising functions or performing duties peculiar to any department of the government are controlled by the rules of law that govern the business of that department while they are exercising its functions. To illustrate: The duties of selectmen are both administrative and judicial. Pub. St. 1891, c. 43, §§ 5-16. When they are administering the affairs of the town they are subject to the control of the court in the same way and to the same extent as other administrative officers, or the directors of a private corporation. Dill. Mun. Corp. §? 908, 909, 915; School District v. Greenfield, 64 N. H. 84, 86, 6 Atl. 484; School District v. Carr, 63 N. H. 201; Gates v. Hancock, 45 N. H. 528; Merrill v. Plainfield, 45 N. H. 126; Hall v. Somersworth, 39 N. H. 511; Butler v. Pelham, 19 N. H. 553; Barr v. Deniston, 19 N. H. 170 When they are exercising their judicial functions they are exempt from the control of the court to the same extent as other judicial officers. Manchester v. Furnald, 71 N. H. 153, 51 Atl. 657; Boody v. Watson, 64 N. H. 162, 9 Atl. 794; Salisbury v. County, 59 N. H. 359; Edes v. Boardman, 58 N. H. 580; State v. Smith, 18 N. H. 91.

The legislative and the judiciary are co-ordinate departments of the state government; and it is the policy of the law that each, when acting within the scope of its authority, shall be supreme in the exercise of the powers committed to it, and that neither shall be subject to the control or supervision of the other. Opinion of the Justices, 56 N. H. 570, 574. It is the legislative department, or the power to make laws, which the policy of the law exempts from the supervision and control of the court, not the body of men who have the supreme power to exercise this function. Bill of Rights, art. 37. The acts of any body of men who may constitutionally legislate in relation to any matter are a part of the laws of the state, and have the same force and effect as though they had been enacted by the Legislature itself. The Legislature may constitutionally authorize city councils to legislate in...