Town of Meredith v. Fullerton

• Decision Date: 01 November 1927
• Citation: 139 A. 359
• Parties: TOWN OF MEREDITH v. FULLERTON.
• Court: New Hampshire Supreme Court

139 A. 359

TOWN OF MEREDITH

v. FULLERTON.

Supreme Court of New Hampshire. Belknap.

Nov. 1, 1927.

Transferred from Superior Court, Belknap County; Sawyer, Judge.

Suit by the Town of Meredith against Edward W. Fullerton to cancel a lease. Questions of law presented by motions of parties transferred without ruling. Decree for plaintiff.

Bill in equity, to cancel the plaintiff's lease of its town hall to the defendant. Heard before a master, who reported the facts, and ruled that the bill should be dismissed. Upon hearing on the master's report, the plaintiff moved for a decree canceling the lease, on the grounds, so far as here insisted upon. (1) that the original lease and the renewal thereof were executed and delivered by the selectmen without lawful authority; (2) that the lease and its renewal were illegal, because the selectmen undertook to grant the defendant a monopoly of the moving picture business in Meredith for the terms thereof, (a) by granting the defendant an irrevocable license, and (b) by agreeing, in behalf of themselves and their successors, not to issue any other license therefor during said terms. The defendant moved that the plaintiff's bill be dismissed.

The questions of law presented by these motions were transferred by Sawyer, C. J., without ruling; the order being that, if upon the facts the defendant's motion ought to be granted, there is to be a decree dismissing the bill, otherwise a decree for the plaintiff for such relief as the facts warrant.

The defendant has conducted the moving picture business in the town hall under a series of leases since 1915. From 1915 to 1919, inclusive, he operated under annual leases, each given for the term of one year. On August 12, 1920, he was given a lease for the term of five years, with the right of renewal at his option for a further term of five years. The defendant, having elected to renew, is operating under a renewal lease given October 15, 1924, for a term of five years.

From 1908 to 1920, inclusive, under articles in the warrant "to see what action the town will take relative to leasing the town hall," it was annually voted to leave the matter in the hands of the selectmen. The language of the vote in 1920 was "that the leasing of the town hall be left with the selectmen, they reserving the evening before Thanksgiving for the fire department and Memorial Day for the G. A. R." There was no article touching the matter in the warrants for 1921 and 1922. Upon petition, however, the usual article was inserted in the warrant for 1923, and, after explanation in open town meeting of the circumstances relating to the five-year lease, it was voted that the article be "passed." Plaintiff's bill was brought pursuant to a vote passed at the annual meeting of 1925.

In 1919 the lease was awarded to the defendant as one of the two highest bidders. The five-year lease of 1920, with renewal privilege, was entered into on the representation of the defendant that he desired to install improvements at considerable expense, and that, unless he could have assurance of a longer tenancy, he intended to build a theater. The annual rental, which prior to 1014 had been $40 a month, and in 1919 $48, for three specified nights per week, was, by the five-year lease, increased to $50 for two designated nights per week, with an option for certain additional nights, at a proportional additional rental. Following the execution of the lease, the defendant made substantial improvements. He has built no theater. During the original term of the lease, by arrangement with the defendant, the town expended $1,200 in the installation of new seats, for the use of which the defendant promised to pay additional rental of $100 a year during the remainder of his tenancy. Other improvements were made by the town under arrangements by which the town is being reimbursed therefor by additional payments by the defendant covering a period of three years.

The grant in the lease and renewal was of the town hall with the appurtenances for the stipulated monthly rental, payable at the end of each month, "which sum is understood and agreed to include and to be in full satisfaction for all charges for rent, lights, and electricity for the booth, heat, janitor, booth, picture screen, piano, and license to operate." At the close of the stipulations of the town appears the following covenant:

"It is further understood and agreed that the said selectmen or their successors shall not issue any other license or privilege to show or exhibit motion pictures in said town of Meredith during the term of this lease, or any renewal thereof."

The office of one of the selectmen who signed the original five year lease expired during the stipulated term, and the renewal lease was signed by only two of the selectmen.

The master found as follows :

"It has been understood by the selectmen and by the defendant, from 1915 to the present time, that, under the provisions in each of the leases relating thereto, the defendant had and has legal right to the exclusive privilege of exhibiting moving pictures in Meredith and that the selectmen were and are legally bound by contract not to consider applications for licenses to exhibit moving pictures made by any other person, and the selectmen have accordingly refused to consider each and all such applications on the ground that they were precluded by contract with the defendant from doing so. * * *

"In connection with the making of the several leases, contracts, and licenses there has been no fraud practiced by or upon either the town or the defendant. The selectmen have in each instance acted in accordance with their best judgment and for the best interests of the town from a revenue standpoint. They undertook, by publicly advertising for bids in 1919, to determine the maximum revenue derivable for the use of the town hall and then to make secure to the town such maximum for a term of several years. They even went so far in order to obtain the most advantageous terms for the town as to assume to barter away their judicial functions relating to the consideration of applications for licenses to exhibit moving pictures. * * * If any one has not actually and legally obtained what he bargained for, it is the defendant in case it should be held, in a proper case raising the point, that he is not legally protected by his lease against competition as he believes he is. But of this he is not now complaining. * * * "I being [am] unable to find * * * that any lease or other contract with him [defendant] was procured through fraud, or that the rent reserved in said leases is either inadequate, unjust or inequitable to the town or to its taxpayers. * * *"

During the period of the original lease, a license was granted to another operator to exhibit pictures in the town on one occasion. This was done by consent of the defendant, with the stipulation that his right to the exclusive privilege was not thereby waived.

Other facts appear in the opinion.

Thomas P. Cheney, of Laconia, and Robert W. Upton, of Concord, for plaintiff.

Fletcher Hale, of Laconia, and Demond, Wood worth, Sulloway & Rogers, and F. C. Demond, all of Concord, for defendant.

SNOW, J. 1. A town has the power to let its town hall for private use, for a reasonable period, when such use will not unreasonably interfere with municipal needs. Curtis v. Portsmouth, 67 N. H. 506, 508, 39 A. 439; Worden v. New Bedford, 131 Mass. 23, 24, 41 Am. Rep. 185; 3 Dillon, Mun. Corps. (5th Ed.) § 997. The determination of the question as to whether the public requirements permit such letting, as well as the term for which the property may be spared for private use is vested in the town. Bates v. Bassett, 60 Vt. 530, 15 A. 200, 1 L. R. A. 166; French v. Quincy, 3 Allen (Mass.) 9, 12; Jones v. Sanford, 66 Me. 585, 591; Blood v. Manchester Electric Light Co., 68 N. H. 340, 342, 39 A. 335.

The grant of power to the selectmen was by express vote of the town at the meeting of 1920 "that the leasing of the town hall be left with the selectmen." There being no ambiguity in this grant, it is not open to practical construction by showing that, under similar authority, the selectmen had in previous years invariably leased the hall for the term of one year only. The vote invested the selectmen with such discretion as respects the terms of the lease as the town possessed. The only limitations upon their authority was that the contract should be the product of good faith, and that the lease should be reasonable as to time and consideration. Bates v. Bassett, supra; Blood v. Electric Co., supra; Cooley Mun. Corps. § 76. That the contract complied with these requisites is supported by the findings of the master that "there has been no fraud practiced by or upon either the town or the defendant"; that "the selectmen have * * * acted in accordance with their best judgment and for the best interests of the town from a revenue standpoint"; and by the master's declared inability to find on the evidence that "the rent reserved in said leases is either inadequate, unjust, or inequitable to the town or to its tax payers."

If, however, the stipulations of the lease could be construed to be in excess of the general authority expressed in the vote of 1920, the "passing" without action of an article in the warrant of 1923 "to see what action the town will take relative to leasing the town hall," after the circumstances relative to the lease had been explained to the voters in open town meeting, was a tacit acceptance and ratification of the terms of the contract by the voters so far as they had the power. Greenland v. Weeks, 49 N. H. 472, 482; Amazeen v. Newcastle, 76 N. H. 250, 253, 81 A. 1079.

A board of selectmen is a continuous body, and a majority are competent to act in all cases. P. L. c. 47, § 12. The claim that the authority of the selectmen to bind the town did not extend beyond the terms of office of the individual members of the...