Toussaint v. Fogarty

• Decision Date: 21 January 1922
• Docket Number: No. 1802.,1802.
• Citation: 116 A. 636
• Parties: TOUSSAINT et al. v. FOGARTY et al.
• Court: New Hampshire Supreme Court

116 A. 636

TOUSSAINT et al.

v. FOGARTY et al.

No. 1802.

Supreme Court of New Hampshire. Coos.

Jan. 21, 1922.

Transferred from Superior Court, Coos County; Marble, Judge.

Suit by A. Toussaint and another against John A. Fogarty and others. On demurrer by defendants, bill transferred to Supreme Court without ruling. Bill dismissed.

Bill in equity by two resident taxpayers of the city of Berlin against the officers of said city, viz., mayor and members of the council, the treasurer and members of the board of education, and members of a joint committee appointed to act on the matter of erecting a new high school building. The bill alleges that the city council of said city have voted to erect a high school building in said city and that the same is now being built; that the city council has voted to authorize the issue of bonds to the amount of $400,000 to procure funds for the construction of the same, and the mayor and city council are about to issue such bonds; that said sum of $400,000 is in excess of two per cent. of the last assessed valuation of the city, but with other indebtedness of the city is not in excess of five per cent. of said valuation.

The prayer of the bill is that all acts and proceedings of the defendants and all votes of the city council relating to the expenditure of money for the proposed high school building be decreed to be illegal and void and that the officers of the city be enjoined from borrowing any money to be used in the construction of said high school building in excess of a sum equal to two per cent. upon the valuation of said city.

Matthew J. Ryan, of Berlin, for plaintiffs.

Ovide J. Coulombe, of Berlin, for defendants.

PARSONS, C. J. The act of 1885, c. 43, which abolished the division of towns into school districts did not destroy the school district system. It substituted for the several districts a single district, "composed of the whole town" (Id. § 5); "a special independent, and complete organization, and [with] officers of its own having exclusive authority for the superintendence and government of its schools and the administration of all its school affairs," a distinct and separate organization and corporation from the town. Union School District v. District, 71 N. H. 269, 270, 52 Atl. 850; Sargent v. District, 63 N. H. 528, 2 Atl. 641; Wheeler v. Alton, 68 N. H. 477, 478, 38 Atl. 208; Loverin v. District, 64 N. H. 102, 6 Atl. 483; Sanborn Seminary v. Newton, 73 N. H. 109, 59 Atl. 614; Parker v. Lyndeborough, 79 N. H. 99, 101, 105 Atl. 7.

The charter of the city of Berlin abolished the existing town and school district organizations, transferred the property of each to the city thereby created, and imposed upon the city the existing indebtedness of both town and district. Laws 1897, c. 121, § 6. The preceding section is:

"Said city shall constitute one school district, and the administration of all fiscal, prudential, and district affairs of said district shall be vested in the city council, except such as shall hereinafter be vested in the school board."

"The general management and control of the public schools, and of the buildings and property pertaining thereto" is vested in a board of education, "who shall be elected by the city council until such time as the city may vote to elect them at their annual ward meetings, or at special meetings called for that purpose."

The charter further provides:

"The appropriations for schools shall be vested in the city council, and the school board shall be accountable to the city council for its expenditures." Id. §§ 15, 16.

The charter contains no provisions for district organization, officers, or meetings. It is plain that the charter did not create an independent school district composed of the whole city of Berlin. The situation is as if, when the division of towns into school districts was abolished in 1885, the statute had provided that all appropriations for school purposes should be made in town meeting and the school board appointed by the selectmen until the towns should vote to elect them in town meeting. For it is the city, not the district, which is authorized in a contingency to elect members of the school board. It is obvious that, under such a statute, it could not have been held as it was in the cases above cited that the financial responsibility for schools was vested in a separate district corporation independent of the town organization, but it must have been concluded that the burden of maintaining schools was...