*1 v. CONCORD. Brown v. Concord. Mar. 22, 1876. Water department Injunction—Collection precinct Expense of fire — restrained. when taxes, to con- The an act of the legislature of Concord was authorized distributing struct and of introducing water-works purpose extin- the more of the water through city supply compact parts authorized was further fires, and for other The guishing purposes. defray the taxes necessary establish a water and to levy precinct, water-works, said and maintaining, operating constructing, and not on and of the upon taxable inhabitants property precinct, precinct, established water city, having of the part city. $300,000, money constructed with borrowed water-works at an expense issued. and for bonds of the were which the purpose, and raise, of the polls councils voted to taxation April, ratable estate ratable estate of the entire city, including polls outside the limits of the the sum of for water use sum, of the fire to collect said proceeded commissioners it over to the board of intending apply water water-works, for the fire control of the having charge $50 hydrant the sum of for each department, precinct. being IFeld, that of the act this would a violation terms requiring of construct- taxes, levied for the defraying levied and to be ing, maintaining, operating the taxable inhabitants and property city; not on therefore so assessed and collected for that from enjoined paying money purpose. town, or the bill in to restrain a court has no jurisdiction by thereof, assessed,
collector from the collection of a tax is illegally Bank v. Savings has at law. party remedy adequate Portsmouth, 52 N. H. 17.
From Merrimack Circuit Court. others, and six filed John S. Brown residents of equity, Bill taxable outside the limits of Concord, pre- having Eastman, Concord, Samuel cinct said William H. treasurer, Allison, collector, praying out of restrained from collecting defendants illegally said taxes claimed to have been certain treasury The facts submitted bill answer. assessed. cause was CONCORD. BROWN v. material to be considered sufficiently opinion appear *2 court. J2. B. S. Sanborn and II for the Bingham, plaintiffs.
Sanborn Ciarle and J. for the defendants. Minot, em- 69, J. the act of of Concord was By city ch. the Smith, construct, and suitable powered said maintain water-works manage, for city, through the of and the introducing distributing purpose water, more of said of for extin- compact city use parts adequate supply and for and for other guishing fires, citizens, of purposes. sums By act, section 6 of the was authorized to borrow such of the city on the of from time to time decreed money might credit city advisable, of constructing, of defraying expense or and said and to issue the notes maintaining, bonds of the time be operating therefor; and also to such taxes as at city levy might any any or for sums deemed advisable the same purpose, paying authorized, city borrowed therefor. The was further time before any works, of to establish a water pre- the construction said commencing thereafter, in said be altered from time to time city, might cinct levied, section, all taxes in said the time the during and provided and in- exist, are be levied assessed the taxable precinct might upon habitants and and not on of of the other precinct, part property city. section, city to the established a Agreeably provisions the more parts city water precinct, comprising compact —that said thereby constructing benefited principally portion —before at an works. The works have since been constructed exceed- $300,000, with borrowed for the and for which the ing bonds money purpose, have been issued. the city It thus from the act of the 1) object statute appears (section “to and city through to enable the introduce distribute more was, fires, of water for and extinguishing adequate supply compact parts ” and for and citizens, for the use of other purposes; 6) (section and constructing, maintaining, said operating was to “be levied the taxable in- upon water-works” of the habitants
the city.” are residents and said have plaintiffs tax-payers solely mainly estate outside the They ratable precinct. complain councils, on the fourth of voted to raise, that taxation April, and ratable estate of the entire city, including polls and ratable estate in the of said territory outside limits polls sum of $7,400, for water for the use of the fire de and that said ratable estate polls partment $7,400 their sum said has been levied plaintiffs proportion to the is collecting assessed and committed collector for who collection, v. CONCORD. treasurer, same and who intends apply over out and bonds issued the same for interest the notes pay cover maintenance, the cost construction, operation water-works, for operating the current expenses said water same, for to and out of growing incident expenses and in and maintain works, ing the cost of constructing part payment same; that the charge acting this the plaintiffs illegally fraudulently. The defendants or its have acted deny illegally officers in this matter. admit that the councils fraudulently They voted to fire said sum of depart- appropriate ment, and and its officers to apply intended all of sum to the board of water under appointed said commissioners said act, for fire and for no other *3 whatever; sum has purpose paid and that been they deny any portion for of any the mentioned 4, the bill. purposes $59,000 vote of the of to on the raise April polls and ratable necessary estates within the the defray expenses of charges the for the then the debts city ensuing year, legally means due from or the incurred v. Dean, Ainsworth properly by city. the expenses 21 N. H. nothing, therefore, 407. There the form or of language the vote But the that improper illegal. is, the plaintiffs’ position of for water for is in appropriation the in fact an fire department appropriation to meet the the of deficiency operating the expense water-works, and the interest on the debt in their contracted construc tion. Cities money have the undoubtedly power appropriate protection Stats., 11,14; of fire—Gen. secs. ch. and an the without be refer appropriation expended throughout ence to the limits of the illegal. water cannot be Section 5 precinct, of the act with indi above referred to authorizes the to contract city viduals and water, for them with to make supplying corporations such contracts and to establish such tolls for the regulations use of water as from may time to time be deemed defendants proper. claim that virtue of this the board of water commissioners power have established rates and tolls the use of water for the different desired, is a which it them rate and purposes among $50 toll of sum annum for each and that the which per hydrant; public it was board water commissioners intended to over to the of was the amount of that rate for each as established and hydrant, public actually in of within the lim hydrants being use the the city,—most its of is limits. the of them outside those It precinct, being but several had the thus to be made refer contended that intended payment service, ence amount of the tolls for the solely hydrant the actual water-taker, would have been the case with precisely any that of the it had no results water pecuniary reference whatever of terms of and the intention works the that the the act precinct; would be provisions payment authorize such and that payment, that just; the of the embraces whole department territory, fire lyi. YOL. BROWN v. CONCORD. all sections therefore that the of the in all expenses the treasury on general charge intended do would no to the sections payment injustice outside the from the water-works because charge water arise only takes the otherwise would place charges which from the of reservoirs city treasury construction maintenance engines from water, and other means for obtaining supply the defend- and men to throw water. >Jt is contended further act, plain- ants construction effect of the as claimed im- would for would tiffs, great work water injustice and hydrant all the pose providing within its without contribution limits, service sections precinct whatever time leave way therefor, and at the same ser- still of engine liable contribution for expenses city still remain in those
vice sections which supply and, would charge further, treasury; maintain without hydrants limits, supply are its own necessities of other city. sections The hydrants, defendants is true. position only partially construction water furnished supply consequence would be of no avail without the apparatus means there For this it will doubt admitted them. no using the precinct furnished, whole —within firemen, hose, steamers, as without hose-carriages, well engines, togo other numerous articles horses, besides the engine-houses, a well fire department. make up complete equipment organized more location, always Such are necessarily, facilities proximity *4 its more a than to serviceable to the or town compact parts city It known settled is claimed that the sections sparsely portions. Fisherville, Parish its fire Parish, company, West East have each the by and other fire for sustained engine, apparatus, provided inas denied, is it viewed city. doubtless be whole sort for their in the burden supplying some and a share compensation the for a more complete expensive department city. compact for to city The councils have undertaken assess whole city first In the to furnished the fire precinct. it seem sum to be so must be determined would place, sup- so is the value of the water insufficient data. How real very it at to ? The fixed $50 be ascertained commissioners have plied increases indefinitely, the number hydrant. Increasing hydrants each it is assumed in the other rule By same what proportion. by furnished sum of is a fair equivalent sec- for reservoirs with compared expenditures difficulties does not are intrinsic city There appear. tions at a valuation. arriving just water-works, although is owner city the whole Again: ultimately it trustee which only practically
BROWN v. CONCORD. bears all the losses, ; but if city The title is any. pre cinct, alone to being benefited is bound law works, by pay expense of How, then, their construction and can the operation. city buy water of tax it then its itself—water which owns—and polls and ratable it estate ? has the under city clearly right, The section 5, to with individuals make contracts for of water the supply and corporations, and tolls for establish regulations proper use of water; itself, it but with nor clear the cannot contract city establish tolls for It is of no the water itself. consequence consumed nor what how its accounts are it with makes its own contracts kept, agents: we look must Brown v. to the substance the transaction. Marsh, N. H. 92. The are the officers water commissioners the whole city councils, and not of the are elected and, so far as conduct, they answerable for their are answerable the city and not to organization has no precinct. beyond a territorial councils, existence established boundaries altered from subject modified, or time enlarged, time as may be deemed has officers who speak advisable. It no act it, and it can Undoubtedly neither sue nor be sued. the inhab itants of the precinct which rights, have would be protected upon a proper case but I think is clear that the being presented; precinct has no claim for water furnished the fire department can be enforced in a suit or in either at The fire equity. law depart ment of the and all the embraces whole territory, expenses of the department in all sections of the must therefore be a gen eral charge on the claim may be, it city treasury. However such just equitable no enforcing ; is one certainly which there is ofway and I think it must be cannot, clear the this indirect way, councils accomplish what cannot done form directly. collecting a claim by an assessment alter the whole cannot the nature of the transaction. To borrow the language appropriate Gilchrist, C. J., upon similar occasion, This is whole no story, lan —“ guage can accounts, make it and no no plainer keeping system intentions undoubtedly the town, honest have been—as might they however were—can a idea affair, different give complexion cause it to through those who look forms express different in which it is do, as it is the sub duty our enveloped, regard, stance of Marsh, Brown transaction.” supra, It will be noticed that act of language enabling section 1, the was authorized for which the to construct its objects *5 water-works were “for of distributing and purpose introducing through the of said of more compact parts adequate supply citizens, and for the use of its and for extinguishing fires, for other purposes.” And it was that all taxes levied provided section for the of and said water- purpose constructing, maintaining, operating “ works, exist, should during the time be levied and might the precinct assessed and upon the taxable inhabitants of said property precinct, and not on therefore, The of con- object, other of said any city.” part BROWN CONCORD. was, of water structing said works adequate supply to obtain an and maintaining of for fires: the precinct extinguishing expense works, well to be borne as as of operating, constructing for the act authority of precinct: express absence any it the fire department, the that used reimbursing for water n would it intended, provided seem when legislature of works should be at the sole expense and maintained operated from exempted portions and all every operation; construction out of their expense growing if—and of which this be so, it follows that this appropriation, clearly plaintiffs is unauthorized and complain, illegal. of I think For reasons collection explained by my Ladd, brother tax this should not be restrained. The paying defendants from should injunction be restrained for interest thereof, ¡§7,400, any said sum of or part treasury or constructing of the bonds cost or notes issued to cover the cost or any or for city, water-works of the said water-works. from or
arising constructing, operating maintaining, collecting for prayer the defendants decree to restrain said tax is denied. Ladd, J. construction is as to the true great question said act city, authorizing to establish water-works Concord act, of that approved June first section By own maintain, Concord construct, manage, authorized into suitable of introducing water-works said for the city, purpose ade- of said distributing through compact the more parts the use quate supply water for fires, extinguishing citizens, and for other uses. proper “ con- By section and empowered Said city is also authorized water, with tract with them supplying individuals corporations tolls and to regulations make such such contracts and to establish &c. for the deemed proper,” use of water as from time to time may sums section such By 6, Said to borrow city is also authorized be deemed money, from time to time credit as city, may advisable, constructing, defraying *6 v. CONCORD. defendants, the fourth answer, in their admit that the city, sum of council, to raise the of the day by voted April, defray necessary expenses charges §7,400 for the fire thereof for water ensuing year, appropriated that and that the intention was and is to out all of department; commissioners for for the fire sum to the board of water ment of the that water depart- no other And claim and for whatever. they well done, under the act be while legally plain- tiffs contend that it is a mere evasion—an in indi- to do an attempt by rect what are forbidden the act to all. way they do at first that said, by It is in the the act place, corporation water-works; own that it the inhabitants precinct contract an is absurd to can for the use say obligation itself own and that it is no better than a farce to make property; want that is already to meet a appropriation of which has supplied, met in the already been financial whereby arrangements the water-works were constructed are to be maintained. the defendants with although met point that reply, is in title to the water-works legal still, inasmuch corporation, as for and paid those works are maintained taxes levied ex- the taxable inhabitants and clusively cinct, upon property pre- trust in favor of the results inhabitants of the precinct, which a court of should equity recognize enforce; hence, is no to establishing there for the use case legal objection rate be paid thus itby held property trust. If the equitable turn alone, on this I were point might hesitate before deciding the claims on the sole con- ground that cannot tract a for the use their own legal obligation There cer- property. seems to be force tainly may suggestion, title although legal still the beneficial to be ownership ought regarded inhabitants of the is not a although the body having organic corporate existence that can either into contracts hold or enter with to its property respect disposition however, It is not necessary, use. mine whether consider this or to deter- point, this somewhat anomalous into exist- creature, brought legislature ence the act the it as an action of subsequent with rights be invested property, a court of can aggregate body as to entitle —such standing protection those rights. that, The act terms entirely provides, unequivocal, a water case struction of the established before the con- commencing all levied, taxes the first provided is, of section 6 of the act—that taxes to both defray of constructing water-works—shall be levied the taxable inhabitants and. said precinct;— this, as it seems is the me, end the case. has argument been us aud ability for with pressed upon great the construction of this force, contended provision *7 BROWN v. CONCORD. plaintiffs would work great injustice to the inhabitants of the precinct, inasmuch as the duty of water for of the fire furnishing depart- the use ment of the whole is rests city one as in by law as well ; the upon whole city that to cast the pre- this burden entirely upon cinct so far as regards the wants of leave and still the part the precinct to its subject proportion the burden supplying for the same use in other parts the is unequal unjust, —the manifest effect being relieve one burdens the part legal them casting another upon part. The field of Let inquiry is broad. suggested by this argument very us a A case not suppose it is dissimilar, presumed, present. the corporation consists of four eight wards, of which comprise town, compact part of a the amount the four cover a remaining large territory wards, four country immediately outside. In the first amount large is concentrated shape buildings a upon small comparatively area. The buildings expensive, liability to great, fire the rates of insurance, high. consequently, wards, valuation, the other which, it may be have an supposed, equal less, more or the buildings are less detached and so expensive, widely from each that, as a fire rule, of one general the destruction less, does not greatly endanger others. The rates of insurance may of 1 to 6 or furnish proportion The of insurance more. rates some indication of to fire fire, liability supposed liability would not seem to criterion to determine inequitable whereby which each proportion to bear property-holder ought providing means for it. extinguishing This does not amount to a full argument answer the defendants’ as to inequality, because fact still that the inhabitants remains the water must water for bear the whole burden of furnishing the use of the fire also their pro- portional share of the whatever wards, same service the outlying that may be but it does show that so is no means inequality great as would at first and that appear, strictly a equitable adjustment would involve of a as inquiries quite character semi-public political least, But appropriate, ever that say the as the court. how- legislature stand, may be, the equities might appear —however full and interests, careful as well examination of all the rights public that should solution of private, be considered in at a just arriving here,— problem were the whole matter for our determination open I cannot but of that sort as regard inquiries precluded terms which the statute is authorized expressed. build and maintain water-works, things, extinguish- among ing fires. Then the the water whole burden is thrown expressly and no precinct, be maintained. ing is made in the for which the works change object supply- are to They be maintained for the purpose water to extinguish fires as much in case water city, just established were not. though legislature between equities undertook to adjust v. CONCORD. the water establishing and outlying portions compact maintained; and I how the works precinct, think providing funds of from the public of $7,400 this appropriation throwing upon ofway an indirect was but water for the fire department constructing burden of portion that it act, is which, placed upon precinct; be sustained. and cannot illegal, was therefore restraining bill is for injunction The first prayer §7,400 for in sum of &c., agents, *8 or for cost of bonds, erecting on the water terest water-works, &c.; may I am that an injunction opinion money As to in the bill. should be to the according granted, prayer of the inhab is in of trustee the nature treasury, corporation which were they itants of and must to the apply purposes of equity a court furnishes one which ground incorporated. should mis fraud : if without the corporation interfere. Further may of the answer fund, the admissions by the trust which appropriate propose the tax-payer what at law here, remedy do it is not plain in equity, grounds would this or both these courts have. one Upon of cases ot elsewhere, taken cognizance state and have generally soft, way misap this granted by injunction prevent relief Brown v. funds. by corporate corporations plication municipal Marsh, ; v. Plain Deniston, 21 v. 19 H. Merrill 81; N. Barr N. 170 H. 552; Brainard, 22 N. H. London v. Conn. see 126 New field, — and Dillon in notes. 732, Mun. sec. et cases cited Corp., seq., an to forbid collection The second is for injunction prayer Tallant— Amsden, Holden, and tax against the plaintiffs Brown, that this §7,400. I am of prayer towards said sum of raising opinion dam- suffer denied, that in.case the for the reason petitioners them, they have, a assessed by illegally against the collection of tax age shown, at law. remedy a and adequate under the circumstances here plain not state, very this in sat- authority The state of question, in two I that it has been considered but isfactory. cases, do find cases, them, as I understand are not to be reconciled. and those to have been Deniston, In v. N. 19 H. seems Barr injunction a against tax illegally restrain the collection granted district; case while, Savings inhabitants of a school the recent “ This court has no 17, it was held that Portsmouth, Bank v. 52 N. H. thereof, town, or the collector bill in to restrain equity jurisdiction as the assessed, from the of a tax which is party collection illegally at law.” remedy has adequate court in or the v. not referred to counsel Barr Deniston was Portsmouth, v. and was overlooked. ques Bank probably Savings case. tion is not much discussed either Marsh, 21 N. H. to the effect note Brown The head a tax collecting from by injunction officers of the town were restrained entirely to be seems illegally assessed, was held to have been BROWN v. CONCORD. unsupported by case, anything contrary appears fact, as shown bill is the case. The substance of the report “ given, was, defendants prayer be enjoined interest of tax-paying sum than the polls any greater balance of unexpended revenue, or from allowing surplus them, manner, the sums set their names against respectively, on the list of taxes in The order was hands of the collector.” these : words issue, of the court that an judgment is, injunction according to bill.” the'prayer This shows that the case is a full sustaining juris- authority diction of restrain an illegal appropriation public funds by municipal officers, no for the further authority proposi- but tion that the collection of a tax restrained at assessed will be illegally suit of an individual tax-payer. So Merrill v. H. 126, 45 N. which has been referred to Plainfield, the plaintiffs’ counsel as an collec authority favor of restraining tion of tax, all, does not holds merely touch but question the same as Brown v. Marsh, will injunction granted pre —that vent the payment money voted the town. illegally cases, this state of our own we are to inquire whether the earlier or the later decision is to be followed. Cooley, his Judge late work on Taxation, page 538, says,—“When a tax is assessed as charge taxed, personal against party his it is ground difficult to personal property, suggest *9 equitable jurisdiction. at law is Presumptively, remedy adequate. If tax is and the illegal makes he is entitled to party payment, recover back the amount. The case does not in this differ regard in any case which a is an demand: party compelled illegal the illegality alone affords no interference, ground equitable proceedings give enforce the tax by none, distress and sale can as these only constitute he a ordinary large cites trespass;” —and cases, number of American from eleven different them among states — Bank v. Savings Judge not, Portsmouth—in thus down. rule laid support Dillon is, The correct that says, view doubtless equity ought —“ reasons, except clearest to interfere with the speedy collection of ordinary or municipal revenues. If is public there no to levy the tax in if power question any circumstances, under or it taxation, be assessed and the at upon property subject remedy law not is case for is adequate, made equitable interposition ;'but if exist, the tax be power levy subject taxation, should, mere errors and to the bet- irregularities according view, certiorari, ter considered be or other corrected appropriate or their at ought effect left be tested law: proceedings, equity taxes, not to interfere with the collection of unless the complainant makes a case coming juris- some head of acknowledged equity diction, as of a of prevention suits, irreparable multiplicity —such injury, where a cloud will be thrown his title to real estate.” Dillon Mun. sec. 737. Corp., v. CONCORD. of Mr. Justice suits, With multiplicity respect prevention of Young case has the observations Cooley following pertinent J. If rely upon blood v. 12 Alb. Law 266 : Sexton, complainants when thereby a controversy to take jurisdiction equity cognizance fails, because of suits the reliance prevented, multiplicity this case. that have no govern application principles It is jurisdiction affected or are alike admissible, when many sometimes parties in a suit to restrain act, that shall unite threatened it; one illegal assess illegal case of this has been done this state But Mich. the cases ment of lands. Scoville Lansing, unless each few and where this can be very the very peculiar permitted, Now, the his own behalf. has an action on equitable complainants if the tax such, nature is this case each these complainants, as the has a at which is as invalid, law, remedy complete ample * * has any law in other But no other gives complainant cases. him sum resisting interest with this tax. The demanded joint each is and it of the com distinct and does not concern one separate, par whether or not. All the interest the plainants joint another pays an interest ties have is a in a such law, just interest joint question are made of several might exist case where demands separate if Such a common interest there several persons. might persons *10 tax, has not in lection and that the court jurisdiction also, Hartford, restrain and v. 25 Conn. ; see, 232, such collection Dodd Hill, in Taxation, also, other cases cited ubi Cooley supra; 458, and Injunctions cases cited. “ cases, like Secor, the case of v. and two other supreme Taylor term, court-of 1875—the the United States has decided—October just following points: “ 1. absolute rule While this does not lay limiting court down of taxes, of a the collection powers of equity restraining court it within some brought declares that it is that case be every essential that neither illegality recognized jurisdiction, rules of equity HEAD. CO. v. MANUFACTURING valua- in the error, excess nor nor
nor irregularity proceedings, it be constitu- law, provided nor of the tion, tional, injustice nor hardship law, suit at nor which can be remedied any grievance an injunc- will authorize tax, or after the either before payment its collection. tion against is a that of taxes levy on the 2. This rule is founded principle make function; and the court can neither anot judicial legislative of be assessment, if the one complained to be made a new nor cause which taxes—without erroneous;—and, also, necessity into state cannot exist—should be regularly promptly paid 331. 18 Alb. Law J. treasury.” * rest, are quite authorities, they These and the reasons upon v. conclusive, Banh rule, as laid down my mind, Savings Portsmouth, it in the one, pres- and that we should follow the correct to hold It is not necessary go ent case. further^than not entitled case are facts present plaintiffs appearing that, for the reason tax, the collection restraining an injunction illegal, turns out to be they the assessment of which complain case they mischief remedy furnishes them a plain ample law apprehend.
Cushing, C. J., concurred. Decree accordingly. Manufacturing Amoskeag Co. v. Head. Mar. 20, 1876. act theflowage
Constitutionality not unconstitutional. ch. 20—is act of 1868—Laws The flowage Circuit Court. Merrimack Erom damages, land defendant’s for the assessment This is a petition encourage “An act to laws of entitled 20 of the under chapter “ That said things, states, among manufactures.” The petition so authority granted, under the Manufacturing Company,
Amoskeag supported, by which reasons, authority weight of *“These relief before equitable a clear case require always incline the court must the revenue which is the collection of a tax injunction sustain an will taxes levied applied rigid rule the same a state. Whether cities, reason is both there towns, inquire; not here but we need counties, over courts, power exercise holding that the control authority for unaccompanied by necessary, is more corporations, by these private Tay of the state.” affecting it when the revenue belong many of the evils Secor—Miller, J. lor Reporter. notes and to issue maintaining, bonds at any water-works, said operating * * may as therefor, taxes levy also to such time be same purpose, deemed advisable for the so ; if shall sums borrowed and said therefor, as aforesaid said elect, construction commencing the may, any time before boundaries, a water precinct establish and fix, by proper thought said as thereof including parts * * dur- section, levied, taxes proper provided levied and time said shall be ing exist, shall taxable inhabitants and lawby provided said manner same assessing city,” &c. taxes within the in said gas precinct
Notes
should notes distinct of a worth give several promissory purchases less article the former might there have been under prohib such had itory law, demands been several liquor made persons that it would liquors illegally say sold to them. We venture to not be interest in seriously suggested question law, a common where distinct, interests of the were could con legal wholly parties stitute when the several contro any ground of equitable jurisdiction, versies were controversies. legal affected Suits purely question do not become of because of their number equitable merely.” cognizance In has no case, was held that a court of jurisdiction tax; restrain tion to nor will it the collection of a assume personal jurisdic where the suits, have, severally, prevent multiplicity parties remedies at law. Charlestown, Loud v. 99 Mass. the court held that the rem whom a tax is a town edy law a person upon illegally exclusive, event the col plain, adequate, complete,