Berlin Taxpayers Ass'n v. Mayor of Berlin

173 A. 810, 87 N.H. 80, 1934 N.H. LEXIS 20

• Court: Supreme Court of New Hampshire
• Decided: June 28, 1934
• Status: Published

Opinion

Allen, J.

The petition alleges that the city government acted fraudulently in voting to give up further prosecution of the action. The general principle is that while taxpayers of a municipality may bring suit or intervene and thereafter carry on or defend the proceeding when illegal action to their detriment is threatened or committed by the municipality (Brown v. Marsh, 21 N. H. 81; Merrill v. Plainfield, 45 N. H. 126; Brown v. Concord, 56 N. H. 375; Sherburne v. Portsmouth, 72 N. H. 539; Blood v. Company, 68 N. H. 340), yet the court may not permit their participation in a proceeding in respect to conduct of a municipality’s officers within their authority (Clough v. Verrette, 79 N. H. 356, 359). Here the vote was legal unless there was fraud. Fraud is alleged but the facts and matters claimed to constitute it are not set forth in the petition, as they should be. Lyme v. Allen, 51 N. H. 242, 244; Eastman v. Thayer, 60 N. H. 408, 413; Blood v. Company, supra. The petition should be dismissed unless after amendment specifying the essential details of the fraud, they are upon hearing found.

Case discharged.

All concurred.