Sugar Hill Imp. Ass'n v. Town of Lisbon

• Court: New Hampshire Supreme Court
• Writing for the Court: BLANDIN
• Citation: Sugar Hill Imp. Ass'n v. Town of Lisbon, 178 A.2d 512, 104 N.H. 40 (N.H. 1962)
• Decision Date: 06 March 1962
• Parties: SUGAR HILL IMPROVEMENT ASSOCIATION et al. v. TOWN OF LISBON et al.

Page 512

178 A.2d 512

104 N.H. 40

SUGAR HILL IMPROVEMENT ASSOCIATION et al. v. TOWN OF LISBON et al.

Supreme Court of New Hampshire.

Argued Feb. 6, 1962.

Decided March 6, 1962.

Harold E. Wescott and Peter V. Millham, Laconia, for plaintiffs.

Nighswander, Lord & Bownes, Hugh H. Bownes, Laconia, for defendant Town of Lisbon.

Frederick J. Harrigan, Colebrook, for defendant Lisbon Village District.

BLANDIN, Justice.

At the outset it may be noted the Court well knows that the problems of towns such as Lisbon, which contain at least two centers of population, widely separated geographically as well as by seemingly conflicting economic and other interests, are troublesome ones. A separate portion of a town may at times have substantial grounds for taking a position adverse to what appears to be the welfare of another. However, our task is strictly limited to the question of the legality and effect of the vote taken at the special meeting of the Lisbon Village District on June 9, 1960.

In this connection, we believe that the suggestion of counsel for the town that the matter is moot must be rejected. In Hood & Sons v. Boucher, 98 N.H. 399, 101 A.2d 466, we held that the issue of whether a case was moot was not subject to rigid rules, but was 'one of convenience and discretion.' Id., 401, 101 A.2d at 468. In the present case in view of action taken after the meeting of June 1960, we believe justice requires that the matter be decided so that the town and its officials may know where they stand.

The plaintiffs' attack on the Trial Court's order dismissing the petition centers on the proposition that the vote taken at the special meeting on June 9, 1960, did not dissolve the Lisbon Village District because two-thirds of its legal voters did not vote for a dissolution or 'termination,' to use the statutory phraseology.

The law under which the meeting purported to act reads as follows: 'Any such district, and any district now in existence having the rights and powers of a village district, may, by a two-thirds vote of its legal voters, terminate its existence and dispose of its corporate property.' RSA 52:21.

Section 21 originated in G.L., c. 107, s. 8, which provided for dissolution by 'a two-thirds vote of the legal voters [of] said district * * *.' In P.S., c. 57, s. 15, the wording was changed to its present form.

The question whether by RSA 52:21 the Legislature intended that two-thirds of all the voters in the district must approve its termination or that a vote of two-thirds of those present and actually voting should be sufficient, is by no means free from difficulty. However, the longestablished, widely-accepted rule that a majority of the legal voters or any given proportion of such refers to those actually voting, received unanimous approval in Laconia Water Works v. Laconia, 99 N.H. 409, 112 A.2d 58 (1955). In that case, all the persuasive arguments that by failure to insert the words 'present and voting' the Legislature showed that it did not intend this rule to apply, were met and rejected as they have been from an early date. Id., 411, 112 A.2d 58.

The opinion further pointed out that when the legislative intent is that a majority or a certain proportion of all of the qualified voters must cast their ballots to make a vote binding, this intent is expressed in positive, unequivocal language. Laconia Water Works v. Laconia, supra, 412. Cf. RSA 31:5, RSA 52:4, RSA 197:3, RSA 482:47, 482:48.

In brief, we agree with the Trial Court that since RSA 52:21 does not 'very clearly' express an intention that a vote of two-thirds of all the qualified voters in the district is a requisite for legal termination, the rule in the Laconia case should apply here. The plaintiffs' contention that this is not so and that a two-thirds vote of all qualified voters in the district is necessary, is rejected.

In relation to the legality of the vote, the plaintiffs, while not questioning the sufficiency of the notice requiring registration, raise the objection that no check list had been used before for a district vote and that the present one which was put into effect for the special June meeting was improperly prepared and hence was not a legal list. Cf. Mace v. Salomon, 99 N.H. 370, 111 A.2d 528. So far as the fact that no check list had been used before is concerned, it is immaterial. The use of such was expressly authorized but not required by Laws 1903, c. 224, § 13 under which the district was organized.

The basis of the plaintiffs' objection appears to be that the vote at the regular meeting on March 24, 1960, authorizing the preparation and use of the list, directed the Commissioners that 'if possible, such list shall be established by the personal registration of those precinct voters eligible to vote.' This they say was illegal since personal attendance is not a requisite and the effect was to deprive many voters of the district of their right to vote. They also claim that the Court improperly inferred that since a majority of the fifty-eight voters present voted for the motion establishing a check list, this could be considered as a petition of ten or more voters under RSA 52:15. They furthermore point out that only 185 persons registered out of approximately 500 eligible to do so.

The Court found that the check list was not a legal one as it had not been corrected and used at a prior meeting (Mace v. Salomon, 99 N.H. 370, 111 A.2d 528), but that 'no one was refused the right to vote.' It further concluded that 'it is not found that any different result would have been arrived at if a different check list or no check list had been used.' It therefore dismissed the plaintiffs' claims on this score.

There is no evidence in the case that anyone was refused the right to register or to vote at the special meeting. The comparatively small number of persons who took the trouble to register and vote, did not as a matter of law force the Court to conclude that any impropriety or irregularity in the preparation of the check list or in any other matters influenced the result of the meeting. It has been a matter of common knowledge that a small turnout occurs all too often where propositions such as involved here are concerned....