58 A. 38 | N.H. | 1904
The question of law raised by the demurrer is the power of the court to restrain city councils at the suit of a tax-payer *540
payer from acting illegally. There is no uniform rule on the subject. In some jurisdictions the court has power to restrain city councils from committing an illegal act whenever it appears that the act will cause the plaintiff to suffer damages not common to the public and that he is entitled to equitable relief. People v. Sturtevant,
The duties of city councils are both legislative and administrative; for in addition to their legislative duties they are charged with the care of the money and other property of the city. P.S., c. 50, ss. 5, 6. When they are managing the property of the city they are not making ordinances for its government, but are administering its affairs. Blood v. Electric Co.,
The legislative and the judiciary are coordinate departments of the state government; and it is the policy of the law that each, when acting within the scope of its authority, shall be supreme in the exercise of the powers committed to it, and that neither shall be subject to the control or supervision of the other. Opinion of the Justices,
It is the policy of the law to subject all persons acting in a trust capacity to the control of the court (P. S., c. 205, s. 1); and the law makes no distinction in this respect between public and private trustees. Dill. Mun. Corp., s. 909. The duty of city councils in administering the ordinary business affairs of the city does not differ from that of the directors of a private corporation in respect to its business. Such directors act as trustees for their stockholders when they are administering the affairs of the corporation. So city councils act in a trust capacity in administering the ordinary business affairs of the city. State v. Wimpfheimer,
The Plains being a public common, the city councils have power to regulate its use. P. S., c. 50, s. 10, cl. XIV. The only limitations upon their right to determine the uses to which it may be devoted are that they must be public, intended to promote the object for which it was given, and that they do not constitute an unreasonable use of the land. They may devote the Plains to any uses within these limits that seem to them to be wise and intended to promote the best interests of the public. They may permit an individual or an association to occupy the whole or a part of the Plains for the purpose of furnishing the public with recreation. As an incident of their right to permit an individual to give exhibitions at the Plains, they may permit him to erect the structures necessary to carry on the business, if that would be a *543
reasonable use of the premises. But if, considering its situation and surroundings, using the Plains for a baseball ground would constitute an unreasonable interference with the rights of the adjoining proprietors, or if the erection of structures incident to such use would constitute an unreasonable interference with the right of the public to use the premises, the city councils cannot permit any one to use the Plains for that purpose, for it would be permitting him to maintain a nuisance, and the city no more than an individual can authorize the maintenance of a nuisance. If the city councils may permit an individual to use the Plains for a baseball park, they can only give him the exclusive control of the premises for a reasonable time; for the public cannot be excluded the premises for an unreasonable time. What would be a reasonable time, whether maintaining a baseball park at the Plains would be a reasonable use of the premises, and whether the erection of the structures incident to such use would be an unreasonable interference with the right of the public to use the premises, are all questions of fact. Ladd v. Brick Co.,
Even if the city councils may permit an individual to build a baseball park at the Plains, they cannot build one with the city's money, for they can use that only for the purposes named in section 4, chapter 40, Public Statutes, or for the purposes for which money may be raised by taxation. Gove v. Epping,
The fact that the plaintiffs' property adjoins the Plains will not prevent the city councils from making any reasonable use of the premises which they think will be for the public good. The plaintiffs have no right in the Plains not common to every taxpayer in Portsmouth, except that of preventing the city from making an unreasonable use of the premises; for it does not appear that they derived their title from the city after the Plains had been dedicated to public uses; nor that its dedication and the sale of the lots that adjoin it were parts of the same transaction. *544
Notwithstanding the court has jurisdiction to enjoin the city councils when they are acting in their administrative capacity if the proposed action is illegal, they cannot be enjoined from passing the resolution to fence the Plains, for the resolution itself is legal; it only authorizes the building of such a fence as is necessary to protect the property and to make it more attractive. But the city councils may be enjoined from taking any action under this resolution toward building a baseball park and from permitting any person to build one at the Plains, if that would be an unreasonable use of the premises.
Demurrer overruled.
PARSONS, C. J., and WALKER and BINGHAM, JJ., concurred: CHASE, J., concurred in the result solely on the ground that the proposed action of the city councils will convert a public common or square into a private park, — a change that they have not power to make, — and that an appropriation of the city's money for such purpose would be unauthorized and illegal, and may be enjoined at the suit of taxpayers.