Monadnock Railroad v. Peterborough , 49 N.H. 281 ( 1870 )

Sargent, J.

In March, 1867, the town of Peterborough voted a gratuity of five per cent, of its valuation, and appropriated the same, to aid in the construction of “a railroad from the Manchester & North Weare Railroad at or near Parker’s Station, so called, through Peterborough Centre Village to the. Cheshire Railroad, at or near State Line Station, so called.”

Nothing appears to have been done under this vote, and it would appear that the railroad to which this gratuity was thus appropriated had been abandoned, in the two years following 1867 ; for in March, 1869, an article was iuserted in the warrant, “to see if the town will vote to appropriate the gratuity of five per cent, of its valuation (raised by a vote at the annual meeting in March, 1867,) upon the same conditions and limitations, specified in said vote, as a gift or gratuity to any railroad corporation that will construct a road to or through Peterborough Centre Village, and will authorize and instruct the town railroad committee to elect for the town to what’ railroad corporation, and in aid to the construction of what line of railroad said gratuity shall be given and applied.”

At the town meeting, the above article was adopted and the town railroad committee were recognized. The town committee soon met and voted to appropriate said gratuity to the Monadnock Railroad, notified said road of that fact, which accepted the same and commenced negotiations to contract the building of their • road'. June eleventh, said committee, or a majority of them, had another meeting and reconsidered their former vote, and notified the officers of the Monadnock Road of such reconsideration; and August seventh said committee, oí a majority of the same, voted to appropriate this gratuity to the Peterborough Railroad Company, which company soon after accepted the same, and both companies have given sufficient guarantees that they will perform on their part, the conditions required by the vote of the town.

August tenth, 1869, another town meeting was holden, at which the committee made two reports, one in favor of each road, aud upon a motion to accept the report in favor of the Peterborough Road, an amendment was offered substituting the other report in favor of the Monadnock Road in lieu of the other, which amendment was accepted by more than a two-thh'ds vote. “Tbe original motion,-as thus amended, was then passed,” but it did not appear by what majority, or that it was carried by a two-thirds vote.

Both the Monadnock and the Peterborough Railroad claim this gratuity, and have each brought a suit to recover it, and the town resists both suits.

It appears that the road to which the gratuity was first voted, was a different line from that of either of these plaintiffs, which has been given up, and no question is now made in relation to that road. - Various questions have been argued here, among which, are the legality of the vote of 1867 by which the gratuity was raised, and also as to the powers of the committee, whether they must all agree in a result or whether they must all act, and a majority decide, or whether a majority may meet in the absence of the rest and transact business, and their acts be good, if carried by a majority of the whole committee. But it seems to us, that another question underlies all these and that is, whether the town could delegate its powers to any committee to act for them in making the appropriation of this gratuity.

Assuming that the vote of 1867 was well enough, which raised the gratuity and appropriated it to a particular road. Also, assumiug that after that road had been abandoned, the town might have appropriated the same gratuity to some other road as they attempted to do in this case, neither of which questions do we decide, can the town delegate this power of appropriating the money to a particular road, to any committee ?

The town could not raisei the money by a committee ; that must be done by the voters present and voting at the town meeting. How must it be appropriated ? The law provides, (laws of 1864, chap. 2890, sec. 1,) that “any city or town may, at a legal meeting, duly notified and holden * * * raise by tax or loan such sums of money * * * and may appropriate the same, to aid in the construction of any railroad * * * in such manner as they shall deem proper provided that two-thirds of the legal voters, present and voting at such meeting shall vote therefor.” The language in the Geni. Stat. chap. 84 sec’s 16 and 17, is not quite so full, but no change in the law was intended.

Language could hardly be more definite or more explicit than this of the intention of the legislature, that the vote of appropriation to some particular road, should be passed at the legal meeting, provided two thirds of the legal voters present and voting at said meeting shall vote therefor, just as much as, that the money should be raised by tax or loan at the same meeting and by the same vote of the legal voters present and voting. This statute gives to the legal voters of the town the light to raise money by loan or tax, and to appropriate it at their legal meeting. It is a power conferred upon towns to be exercised at legal meetings and by the legal voters; provided, “two thirds vote of the legal voters present and voting at such meeting shall vote therefor.” The towns have not the privilege of substituting a committee to settle either of these questions for them, but they must both be settled at the legal meeting and by a two thirds vote of the legal voters present and voting at such meeting.

The only expression in the statute which could seem to be construed into any different meaning, is this, “ in such manner as they shall deem proper.” But upon examining the statute, we think that this sentence refers, not to the manner in which the action of the town should be had or the vote passed, or the election of the road made certain to which the money should be apppropriated, but to the manner in which the aid shall be furnished to the road to which it has been appropriated by the two thirds vote of the legal voters, &c. The statute contemplates in the first and second sections different ways of affording the aid to the road, it may be by a direct appropriation and a paying over of the whole sum at once to aid in the construction of some road nearly finished and only needing this additional sum to complete it. Or they may appropriate it with a view to aid some new company that has not yet begun to construct its road, and may, under sec. 2, make a contract to pay this money by installments, or a certain proportion yearly, or as the different portions of the work are completed, and so the application may be made in aid of the construction of the road in such manner as the town deems proper.

The money which has been voted and appropriated to some particular road in the way, and by the vote required at the meeting, may be applied to aid the road “in such manner as they shall deem proper,” or best adapted to promote the construction of the road.

We think the vote of the town should designate the particular road to aid which the money is appropriated. There are many considerations of public policy that would bear upon this question. If there wei’e rival routes as in this case, the friends of one would natually oppose the other; but if through the interest of the railroads the town had got a railroad committee already appointed that was understood to be very nearly evenly divided between these two or more rival routes, the friends of all 'these routes would be likely to unite in voting to refer the matter of electing the road to that committee (each trusting to his influence with the members of the committee) and thus carry a two thirds vote for that measure, when if either route was brought directly and specifically before the town at its legal meeting, the required vote of two thirds could not be obtained in its favor.

The danger is, that towns in the midst of the pressure and excitement, and rivalry that prevails on these subjects, will rush thoughtlessly into debt in aid of some enterprise that shall in the end prove of little value or importance. The legislature has therefore provided for a two thirds vote in this class of cases, instead of the major vote in ordinary cases ; and it can hardly be supposed that the legislature intended to put it in the power of three or four rival routes, which would all unite in their endeavors to get the town to raise the money and leave it with a committee to select the route to which it should be appropriated, by such union to carry a two thirds vote of the town thus to raise money, when neither of the routes standing alone would have intrinsic merits of its own, sufficient to carry even a majority of the votes of the town. We think the town can no more appropriate this money by a committee, than they could raise it by the same committee ; that the electing which of two or more roads should receive this gratuity, would be, in fact, appropriating it, and that this can only be done, as the statute has provided at the legal meetings of the town and by the legal voters present and voting at such meetings.

We do not intend to decide, that the vote of the town on the tenth of August, adopting the report of Mr. Livingston in favor of the Monadhock Road, would not have been a sufficient appropriation of the money to that road by the town, if it had appeared affirmatively that this vote was carried by the required two thirds of the voters present and voting. But that is a fact which must appear affirmatively from the record. It would not follow that, because two thirds of the voters were in favor of amending the original resolution, by substituting the report in favor of the Monadnock Road, for that in favor of the Peterborough Road, there would necessarily be the same majority upon the final passage of the resolution, because as between two roads, the town might be unanimously in favor of one rather than the other, and yet not be so strongly in favor of either as to wish to vote money of the town for its construction.

A case strongly in point is Thompson v. Schermerhorn, 9 Barb. 152, and the same case on appeal in 6 N. Y. (2 Selden) 92.

In Clarke v. Supervisors, 27 Ill. 305, it was held, that in ordering an election to determine whether a county will subscribe for stock to aid in building a railroad, it is improper to submit the question, whether two different roads shall be so aided by a single vote, so that the two propositions cannot be voted on separately.

See, also, Starin v. Genoa, 23 N. Y. 439, 455. But we have two cases in this state directly in point, — School District v. Gilman, 3 N. H. 168, where it is held'that “ what the statute requires to be done by the town at a legal meeting cannot be done by a committee,” and Neal v. Lewis, 46 N. H. 276.

It follows then, that all that the town has done since 1867, goes for nothing. The appointment of the committee for the purposes specified in the vote, and the action of the committee, whether in favor of one road or the other, or both, Avas not authorized by the statute, and can have no legal effect, and as none of their acts have been ratified by the toAvn so far as appears, by the necessary two-thirds vote, there must be in both these suits,

Judgment for the defendant.