Childs v. Hillsborough Electric Light & Power Co. ( 1900 )

The town of Hillsborough has authority to enter into a contract for lighting its streets. P.S., c. 40, ss. 3, 4; Blood v. Electric Co.,68 N.H. 340, 341. The plaintiffs say the town did not lawfully exercise the authority because its vote was an attempt to raise and appropriate money, and, being taken without a ballot at a special meeting attended by less than half of the voters of the town, was not passed as required by the last clause of the following provision of the statutes: "Towns may, at any legal meeting, grant and vote such sums of money as they shall judge necessary to support schools; to build and repair schoolhouses; to maintain the poor; to lay out, build, and repair highways and sidewalks; to build and repair bridges; to light streets; . . . but no money shall be raised or appropriated at any special town meeting except by vote by ballot, nor unless the ballots cast at such meeting shall be equal in number to at least one half of the number of legal voters borne on the check-list of the town at the annual or biennial election next preceding such special meeting." P.S., c. 40, s. 4. The question for consideration, then, is: Would money be "raised or appropriated," within the meaning of those words as used in the statute, by the contract referred to in the resolution?

By the first part of the section, authority is conferred upon towns to "grant and vote," or, in other words, to give and appropriate, money for certain purposes. This includes authority to make contracts in respect to the specified purposes by which money is to be paid in the future. The last clause of the section limits the manner in which the authority can be exercised at special meetings. "Raise" and "appropriate" there correspond with "grant" and "vote" in. the first part of the section. "Vote," when used in such a connection, and "appropriate" have the same meaning. To "raise" money, as the word is ordinarily understood, is to collect or procure a supply of money for use, as, in the case of a municipal corporation, by taxation or perhaps loan. Money cannot be actually given or appropriated before it is raised. A promise to give or appropriate money may be made before the money is actually procured, but in such case the promise binds the promisor to have the money on hand when it becomes due, and so, in a sense, the money is raised by the promise. As authority to grant money includes authority to promise a grant of it, so an exception in respect to raising money includes an exception of a promise by which money must be raised.

By the contract mentioned in the resolution, the town would promise to pay the defendants thirteen dollars a year for each light furnished for lighting streets during the specified term. If the resolution had also provided for raising and appropriating the money required to fulfill the promise as it should become due, the case would fall within the terms of the limitation in their narrowest sense. The effect of the resolution in its present form, valid, is the same as it would be with such a provision in it. The town must seasonably raise or appropriate sufficient sums of money to pay for the lights in accordance with its promise. If it does not do so voluntarily, the law will step in and do it. A judgment recovered upon the promise could, if necessary, be enforced by a compulsory assessment and collection of taxes, and an appropriation of the same to its payment. P.S., c. 234, ss. 4, 9, 10. The circumstance that the actual raising or appropriation of the money is deferred does not seem to be material.

If the legislature intended that a minority of the voters bind the town at a special meeting to the same extent that a majority can, there would seem to be no reason for placing a limitation upon their power to raise or appropriate money. A policy which would allow a minority of voters to bind a town to pay money, but would not allow them to take the necessary steps to provide the money with which to make the payment, would be questionable soundness, to say the least. Moreover, a limitation upon the act of raising or appropriating money would be useless the power exists to make contracts by which the money must be raised and paid. The limitation could always be avoided by simply changing the form of the net from that of raising or appropriating money to that of agreeing to pay money for the desired purpose. The evil which the legislature intended to avoid by the passage of the limitation would continue as if there were no limitation. It is unreasonable to suppose the legislature would take trouble to pass an act that would be so futile. "When a statute is capable of two constructions, one of which leads to absurd, irrational, or unjust results, and the other to reasonable and just results, the latter is to be adopted as an expression of the legislative intention." Thompson v. Estey, 69 N.H. 55, 75, and authorities cited, Kendall v. Green,67 N.H. 557, 562, 563.

It appears altogether probable that the legislature used the words "raise" and "appropriate" in this statute in a broad sense, covering any action the necessary effect of which is to raise or appropriate money, and that the limitation in the last clause was intended to apply to all acts that were authorized in the first part of the section. The purport of the section, briefly stated, is that towns may grant and vote money for certain purposes, but shall not do so at special meetings unless by a vote by ballot in which one half, at least, of the voters take part.

According to the provisions of the case, the officers of the town should be restrained from appropriating money to carry the resolution into effect.

Case discharged.

All concurred.