Stocklan v. Brackett

• Decision Date: 07 September 1948
• Docket Number: No. 3784.,3784.
• Citation: 61 A.2d 140
• Parties: STOCKLAN v. BRACKETT et al.
• Court: New Hampshire Supreme Court

61 A.2d 140

STOCKLAN

v.BRACKETT et al.

No. 3784.

Supreme Court of New Hampshire.

Sept. 7, 1948.

Transferred from Superior Court, Strafford County; Wheeler, Judge.

Suit in equity by Louis Stocklan against Woodbury Brackett and others to enjoin defendants, as Manager, Mayor, and Members of the Council of the City of Dover, from entering into a contract with the Cole-Layer-Trumble Company to revalue all taxable property in the city. Transferred by the trial court without ruling all questions raised by the petition and motion to dismiss it. On defendants' motion to dismiss the bill.

Bill dismissed.

Bill in equity, by a taxpayer of the City of Dover seeking an injunction against the defendants in their official capacities as City Manager, Mayor and members of the Council of the City of Dover, to restrain them from entering into a contract with the Cole-Layer-Trumble Company to revalue all the taxable property of the city. Trial by the Court (Wheeler, J.) who transferred without ruling all questions raised by the petition and the motion to dismiss. The case was entered in this Court upon August 10, 1948, and argued the same day under a suspension of the rules. The defendants moved to dismiss the bill on the ground that the petitioner has not complied with section 51, chapter 385, Laws of 1947, which provides as follows: ‘Notice of Claim. No action at law or bill in equity shall be sustained against the city unless a notice setting forth the nature and amount, if any, of the claim shall have been delivered or sent by registered mail to the office of the city clerk not less than sixty days prior to the commencement of said action at law or bill in equity.’ It was conceded that no notice as above described has been given to the city of Dover.

John F. Beamis Jr., of Somersworth, for plaintiff.

Hughes & Burns and Donald R. Bryant, all of Dover, for defendants.

PER CURIAM.

The contention of the defendants that by reason of the foregoing provisions of the city charter, the present petition should be dismissed, must be rejected. There is no reason to believe that this section was intended to change the well established rule in this jurisdiction, that equity may restrain the unlawful appropriation of public funds. Blood v. Manchester Electric Light Company, 68 N.H. 340, 39 A. 335; Childs v. Hillsborough Electric Light & Power Co., 70 N.H. 318, 47 A. 271; Clough v. Verrette, 79 N.H. 356, 357, 109 A. 78; Conway v. Water Resources Board, 89 N.H. 346, 199 A. 83. Cases in other jurisdictions indicate that such provisions are not intended to prohibit the determination of the legality of municipal action without notice prior to suit, although reasonable notice may properly be required as a condition precedent to action upon claims against a municipality. 52 A.L.R. 640, 659. This interpretation of section 51 is strengthened by the provision of section 40 as follows: ‘A taxpayer or resident may maintain a civil action to restrain payment of compensation to persons unlawfully appointed or employed or to recover for the city any sums paid contrary to the provisions of this charter.’ This appears to give the petitioner specific authority to maintain the present action.

The contention of the plaintiff that the contract which the city proposes to make with the company is illegal because a reappraisal of all the property in the City of Dover has not been ordered by the Tax Commission, must likewise be rejected. While the Tax Commission may order a reassessment, R.L. c. 82 § 12, there is nothing in our laws which prohibits municipalities from making appraisals of taxable property without an order of the Tax Commission.

It is also argued by the plaintiff that the proposed contract is unlawful since it deprives the City Assessors of their authority to value all property to be taxed. A dictum in Hayes v. Hanson, 12 N.H. 284, 289, furnishes some support for the argument. The answer to this argument is that the contract does not propose delegation of the Assessor's authority, but on the contrary provides that the judgment of the City Assessor shall be final upon all assessments. Conroy v. City of Battle Creek, 314 Mich. 210, 22 N.W.2d 275. See also note on ‘The Use of Scientific Valuation Procedure in Real Property Tax Assessment.’ 30 Marquette, Law Review 125 (1946).

The plaintiff also argues that the contract violates section 31 of the City Charter, which provides as follows: ‘After the budget has been adopted, no money shall be drawn from the treasury of the city, nor shall any obligation for the expenditure of money be incurred, except pursuant to a budget appropriation unless there shall be a specific additional appropriate therefor.’ Section 7 of the proposed...