Town of Lisbon v. Lisbon Village Dist.

• Decision Date: 30 July 1962
• Citation: 183 A.2d 250,104 N.H. 255
• Parties: TOWN OF LISBON v. LISBON VILLAGE DISTRICT et al.
• Court: New Hampshire Supreme Court

Page 250

183 A.2d 250

104 N.H. 255

TOWN OF LISBON v. LISBON VILLAGE DISTRICT et al.

Supreme Court of New Hampshire.

Argued June 26, 1962.

Decided July 16, 1962.

Rehearing Denied July 30, 1962.

Beryle M. Aldrich, Lisbon, and Nighswander, Lord & Bownes, Laconia, Hugh H. Bownes, Laconia, for plaintiff, Town of Lisbon.

Frederick J. Harrigan, Colebrook, on the brief, for defendant, Lisbon Village District.

Wyman, Bean & Tefft, Manchester, Louns C. Wyman and Stanton E. Tefft, Manchester, for Sugar Hill Improvement Society.

LAMPRON, Justice.

The original Lisbon Village District was formed by special act of the Legislature. Laws 1903, c. 224. In addition to the powers of a village district, it was given some of the powers of the Mayor and Aldermen of cities, of the selectmen of towns, of firewards and all the powers of health officers of towns. On June 9, 1960, it was voted to dissolve this district effective December 31, 1960. It was also voted that on the latter date all cash assets and accounts receivable be delivered to or retained by the water district division together with such physical equipment as was then in actual use by that department. All other plants, equipment and assets were to go to the town of Lisbon. This court upheld a Trial Court decree that this vote legally terminated that district. Sugar Hill Improvement Ass'n v. Lisbon, 104 N.H. 40, 178 A.2d 512.

In May, 1961, a Lisbon village water district was formed with boundaries enlarged to include part of the Town of Landaff. This new water district assumed control over the cash, accounts receivable, plant, equipment and assets, including the real estate, of the water department which had been a part of the original village district. At a meeting on August 10, 1961, this new water district purported to dissolve itself, effective December 31, 1961, and all its assets were to be conveyed to a new Lisbon village district if established January 1, 1962.

At a meeting held August 30, 1961, a new Lisbon village district was formed to become effective January 1, 1962. In its charter the phrase 'and any other lawful purpose' was added to the purposes enumerated in RSA ch. 52 under the provisions of which this new district was organized. It has the same boundaries as the original district and had possession and use, as of February 28, 1962, and prior thereto, of the trucks, equipment and other assets previously owned by the original district. Its water department has assumed control and has possession and use of the same assets previously owned by the water department of the original district and later by the water district formed in May, 1961, and later dissolved.

Meanwhile the Legislature passed an act, approved July 5, 1961, incorporating the inhabitants of the easterly part of Lisbon, the Sugar Hill area, into a separate town. Laws 1961, c. 360. Section 7 thereof provides that 'this act shall take effect as of April 1, 1962, provided however, that during the period from March 1, 1962 to March 31, 1962, the first meeting of Sugar Hill shall be held as provided by section 4 of this act. Notwithstanding anything to the contrary in this section, in the event that on February 28, 1962, there is in existence a village district in the Town of Lisbon with powers, liabilities, taxes and extent identical so far as possible to the Lisbon Village District which may have been dissolved in June, 1960, then this act shall be null and void and of no further force and effect. On and after February 28 1962, the provisions of RSA 52:21 shall not apply to any village district which may be in existence in Lisbon on February 28, 1962'.

The basic issue to be resolved therefore is whether there was in existence on February 28, 1962, a village district in the town of Lisbon with powers, liabilities, taxes and extent identical so far as possible to the Lisbon village district which was voted on June 9, 1960, to be dissolved as of December 31, 1960. What has actually transpired is not greatly in dispute. What is in sharp contest is the effect on the issue to be decided of certain acts or omissions which took place.

It might be useful to consider first a few subsidiary questions. It is contended that the Sugar Hill Improvement Association, not being or representing a tax payer or a resident of the town of Lisbon, has no standing to raise objections to any acts or omissions by the town or the village district. We are dealing with a matter of public importance. It is imperative that there be an early and final determination of whether Sugar Hill has become a separate town. This answer is sought by the town and the village district so that the selectmen of Lisbon may learn the scope of their duties and obligations. In the interest of justice and to permit the orderly operation of town government we will consider the merits of the controversy. School Dist. No. 3 in Lisbon v. School District, 96 N.H. 290, 292, 75 A.2d 409; Duncan v. Town of Jaffrey, 98 N.H. 305, 306, 100 A.2d 163; Sugar Hill Improvement Ass'n v. Lisbon, 104 N.H. 40, 42, 178 A.2d 512.

Argument is also made that chapter 360 of Laws of 1961 is unconstitutional. The reasons given are that it constitutes an intervention by the Legislature in a matter pending in the courts and is in violation of the separation of powers (Const., Pt. 1, art. 37) and an enactment of a retrospective law. Id., art. 23d. Also that the prohibition in its section 7 against dissolution of any new village district which may be formed constitutes undue discrimination when other such districts are permitted to dissolve under RSA 52:21.

There has been for over a century and there is now in this state plenary control by the Legislature over municipalities and similar corporations which would include village districts. State v. Town of Goffstown, 100 N.H. 131, 133, 121 A.2d 317. This includes not only the power to create them but also to modify or divide them in such manner as to meet the public exigencies. Bristol v. Town of New Chester, 3 N.H. 524, 532, 534. It may exercise this authority at the local level (Opinion of the Justices, 102 N.H. 240, 154 A.2d 184) and because the Legislature is operating in a sphere essentially legislative in nature its action does not constitute an invasion of the judicial power. State v. Goffstown, supra, 133. This legislation is not a retrospective law because in the nature of things the power to so act is reserved by necessary implication when these entitles are created. Bristol v. New Chester, supra, 3 N.H. 532.

The evident purpose of Laws 1961, c. 360 was to separate Sugar Hill from Lisbon unless a village district 'identical so far as possible' to the original district was in existence...