State v. Jackman

• Citation: 41 A. 347,69 N.H. 318
• Parties: STATE v. JACKMAN.
• Decision Date: 29 July 1898
• Court: Supreme Court of New Hampshire

41 A. 347

69 N.H. 318

STATE

v. JACKMAN.

Supreme Court of New Hampshire. Merrimack.

July 29, 1898.

Appeal from police court of Concord.

Lyman Jackman was convicted of violating an ordinance of the city of Concord, and fined five dollars, and he appeals. Judgment for defendant.

The ordinance was as follows: "The tenant or occupant, or, if there be no tenant, the owner of any building or lot of land bordering on any street where there is a sidewalk, shall cause all snow to be removed from the sidewalk adjoining his aforesaid premises within six hours after the snow shall have ceased to fall, if in the daytime, or before two of the clock in the afternoon next succeeding, if the snow shall have ceased to fall in the nighttime." The respondent admits that he has not complied with the aforesaid ordinance, and his only defense is that said ordinance is invalid. The charter and ordinances of the city may be referred to.

Sargent, Hollis & Niles, for the State.

Samuel C. Eastman, for defendant.

BLODGETT, J. Among the various purposes enumerated in the act incorporating the city of Concord, and for which power is expressly given the city council to make ordinances, is that "to compel all persons to keep the snow * * * from the sidewalks in front of the premises owned or occupied by them." Laws 1849, p. 819, c. 835, § 17. The ordinance in question, therefore, having been authorized by specific and definite legislative authority, and having also been "duly and legally adopted," has the effect of a special law of the legislature within the limits of the city, and with respect to persons upon whom it may lawfully operate, and cannot be declared invalid except for unconstitutionality. 1 Dill. Mun. Corp., (4th Ed.) §§ 319-322, 327, et seq.; Tugman v. City of Chicago, 78 Ill. 405; Phillips v. City of Denver, 19 Colo. 179, 34 Pac. 902; City of Brooklyn v. Breslin, 57 N. Y. 591, 596; City of St. Paul v. Colter, 12 Minn. 41 (Gil. 16). Under our statutes, the duty of keeping highways in repair and free from obstruction by snow or other things that impede travel or render it dangerous is imposed upon the municipalities in which they are situate (Pub. St. c. 76, §§ 1, 2); and this duty extends to sidewalks as well. Hall v. Manchester, 40 N. H. 410, 415; Stevens v. Nashua, 46 N. H. 192, 195. For these purposes, municipalities are empowered to "raise such sum as they judge necessary for each year," to be assessed upon all the polls and estate subject to taxation therein, and may order the same paid in money, in which case "the tax shall be committed to the collector of taxes, and be collected as other taxes," or, if not so ordered, it "may be paid in labor." Pub. St c. 73, §§ 1, 5, 8. Burdened with this duty, and invested with this power, in respect of highways, we are of opinion that the city of Concord could not by its ordinance impose upon the defendant the labor or expense of removing the snow from the sidewalk adjoining his premises, and which constituted a part of the highway itself. Having contributed his proportional share of the public expense of keeping the highway in a suitable condition for the public travel, we are not aware of any constitutional principle upon which more can be lawfully exacted of him. Nor should there be. A property owner has no other or greater right in or to or control over that part of the public street in front of his property than any other part of the highways of the town. All the streets of a municipality are equally free to the general public, who at all times are entitled to the free and unobstructed use of every foot of them. 2 Dill. Mun. Corp. (3d Ed.) §§ 659, 683. It is true that the fee of the street may be, and generally is, in the adjoining lot owner; but this can be of no consequence, because the easement over it is in the public. This being so, it is plain that the lot owner has no other interest in the street, as such, than any other citizen of the municipality. "The same is true of the sidewalk. It is a part of the street set apart for the exclusive use of persons traveling on foot, and is as much under the control of the municipal government as the street itself. The owner of the adjacent lot is under no more obligation to keep the sidewalk free from obstructions than he is the street in front of his premises. He may not himself obstruct either so as to impede travel on foot or in carriages. It will be conceded the citizen is not bound to keep the street in front of his premises free from snow or anything else that might impede travel. Then, upon what principle can he be fined for not removing snow or other obstructlon from the sidewalk in which he has no interest other than what he has in common with all other persons resident in the city? it is certainly not upon the principle under which assessments are made against the owner for building sidewalks in front of his property. The cases are not analogous. Such assessments are maintained on the ground the sidewalk enhances the value of the property, and, to the extent of the special benefits conferred, they are held to be valid." Gridley v. City of Bloomington, 88 Ill. 554, 556, 557; City of Chicago v. O'Brien, 111 Ill. 532. And, certainly, he cannot be so fined upon any principle of taxation which obtains in this jurisdiction; for "the unconstitutionality of unequal taxation is too plainly declared by our constitution, and too well settled by reported decisions made during the last fifty-three years to be debatable." Boston, C. & M. R. R. v. State. (10 N. H. 87, 94. And, "under the constitution, * * * there is no warrant for the imposition of any other tax than one assessed upon a proportional and equal valuation of all the different kinds of property on which it is to be levied" (State v. United States & C. Exp. Co., Id. 219, 246); and no more can he be upon any principle of division of the public expense, for "the unconstitutionality of an unequal division of public expense among New Hampshire taxpayers has been settled too long, and by too many decisions, to be a subject of debate or doubt" (Id. 246, per Doe, C. J.).

True, the ordinance is not strictly a law levying a tax, the direct or principal object of which is the raising of revenue (In re Goddard, Petitioner, 16 Pick. 504); but it is such a law practically, both in substance and in effect, and should fairly be so regarded. The amount of expense from which the city is relieved by the operation of the ordinance is equivalent to so much revenue derived from taxation. The additional burden to which the lot owners are subjected is none the less a tax because it is exacted in labor, and not in money (Pub. St. c. 73, § 8, before cited; Cooley, Tax'n, 12); and the fine imposed for its nonperformance is as useful to the city as a tax of equal amount "Courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty—indeed, are under a solemn duty —to...