FROM MERRIMACK CIRCUIT COURT.
By the act of 1871, ch. 69, the city of Concord was empowered to construct, manage, and maintain suitable water-works in said city, for the purpose of introducing and distributing through the more compact parts of said city an adequate supply of water, for extinguishing fires, and for the use of its citizens, and for other purposes. By section 6 of the act, the city was authorized to borrow such sums of money on the credit of the city as might from time to time be decreed advisable, for the purpose of defraying the expense of constructing, maintaining, and operating said water-works, and to issue the notes or bonds of the city therefor; and also to levy such taxes as might at any time be deemed advisable for the same purpose, or for paying any sums borrowed therefor. The city was further authorized, at any time before commencing the construction of said works, to establish a water precinct in said city, which might be altered from time to time thereafter, and all taxes levied, as provided in said section, during the time the precinct might exist, are to be levied and assessed upon the taxable inhabitants and property of the precinct, and not on any other part of the city.
Agreeably to the provisions of this section, the city established a water precinct, comprising the more compact parts of the city — that portion to be principally benefited thereby — before constructing said works. The works have since been constructed at an expense exceeding $300,000, with money borrowed for the purpose, and for which the bonds of the city have been issued.
It thus appears from the act (section 1) that the object of the statute was, to enable the city to "introduce and distribute through the more compact parts an adequate supply of water for extinguishing fires, and for the use of its citizens, and for other purposes;" and (section 6) that "the expense of constructing, maintaining, and operating said water-works" was to "be levied and assessed upon the taxable inhabitants and property of the precinct, and not on any other part of the city."
The plaintiffs are residents and tax-payers in said city, and have ratable estate solely or mainly outside the precinct. They complain that the city councils, on the fourth of April, 1874, voted to raise, bar taxation of the polls and ratable estate of the entire city, including the polls and ratable estate in the territory of said city outside the limits of the precinct, the sum of $7,400, for water for the use of the fire department of said city, and that upon the polls and ratable estate of the plaintiffs their proportion of said sum of $7,400 has been levied and assessed and committed to the collector for collection, who is collecting
the same and paying it over to the city treasurer, who intends to apply and pay out the same for interest upon the notes and bonds issued to cover the cost of the construction, maintenance, and operation of said water-works, for the current expenses of maintaining and operating the same; for other expenses incident to and growing out of said water-works, and in part payment of the cost of constructing and maintaining the same; and in this the plaintiffs charge that the city is acting illegally and fraudulently.
The defendants deny that the city or its officers have acted illegally or fraudulently in this matter. They admit that the city councils voted to appropriate said sum of $7,400 for water for the fire department, and that the city and its officers intended to apply and pay out all of said sum to the board of water commissioners appointed under said act, for water for the fire department of the city, and for no other purpose whatever; and they deny that any portion of said sum has been paid out for any of the purposes mentioned in the bill.
The vote of the city, of April 4, 1874, to raise $59,000 on the polls and ratable estates within the city, to defray the necessary expenses and charges of the city for the then ensuing year, means the debts legally due from or the expenses properly incurred by the city. Ainsworth v. Dean,21 N.H. 407. There is nothing, therefore, in the form of language of the vote improper or illegal. But the plaintiffs' position is, that the appropriation of $7,400 for water for the fire department is in fact an appropriation to meet the deficiency in the expense of operating the water-works, and the interest on the debt contracted in their construction. Cities undoubtedly have the power to appropriate money for the protection of property against fire — Gen. Stats., ch. 44, secs. 11, 14; and an appropriation to be expended throughout the city, without reference to the limits of the water precinct, cannot be illegal. Section 5 of the act above referred to authorizes the city to contract with individuals and corporations for supplying them with water, and to make such contracts and to establish such regulations and tolls for the use of water as may from time to time be deemed proper. The defendants claim that by virtue of this power the board of water commissioners have established rates and tolls for the use of water for the different purposes for which it may be desired, and among them is a rate and toll of $50 per annum for each public hydrant; and that the sum which it was intended to pay over to the board of water commissioners was the amount of that rate for each public hydrant, as established and actually in use by the city, — most of the hydrants being within the limits of the precinct, but several of them being outside those limits. It is contended that the payment thus intended to be made had reference solely to the actual amount of the tolls for the hydrant service, precisely as would have been the case with any other water-taker, and that it had no reference whatever to the pecuniary results of the waterworks to the precinct; that the terms of the act and the intention of its provisions authorize such payment, and that such payment would be just; that the fire department of the city embraces its whole territory,
and therefore that all the expenses of the department in all sections of the city should be a general charge on the city treasury; that the intended payment would do no injustice to the sections of the city outside the precinct, because the charge for water from the water-works only takes the place of the charges which otherwise would arise to the city treasury from the construction and maintenance of reservoirs and other means for obtaining a supply of water, and from engines and men to throw the water. It is further contended by the defendants that the construction and effect of the act, as claimed by the plaintiffs, would work great injustice to the water precinct, for it would impose on the precinct all the expense of providing water and hydrant service within its limits, without any contribution whatever by other sections of the city in any way therefor, and at the same time leave the precinct still liable to contribution for all the expenses of engine service and water supply in those sections of the city which still remain a charge on the city treasury; and, further, that the precinct would maintain the hydrants which are without its own limits, and supply the necessities of other sections of the city.
This position of the defendants is only partially true. The hydrants, and the supply of water furnished in consequence of the construction of the water-works, would be of no avail without the means and apparatus for using them.
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FROM MERRIMACK CIRCUIT COURT.
By the act of 1871, ch. 69, the city of Concord was empowered to construct, manage, and maintain suitable water-works in said city, for the purpose of introducing and distributing through the more compact parts of said city an adequate supply of water, for extinguishing fires, and for the use of its citizens, and for other purposes. By section 6 of the act, the city was authorized to borrow such sums of money on the credit of the city as might from time to time be decreed advisable, for the purpose of defraying the expense of constructing, maintaining, and operating said water-works, and to issue the notes or bonds of the city therefor; and also to levy such taxes as might at any time be deemed advisable for the same purpose, or for paying any sums borrowed therefor. The city was further authorized, at any time before commencing the construction of said works, to establish a water precinct in said city, which might be altered from time to time thereafter, and all taxes levied, as provided in said section, during the time the precinct might exist, are to be levied and assessed upon the taxable inhabitants and property of the precinct, and not on any other part of the city.
Agreeably to the provisions of this section, the city established a water precinct, comprising the more compact parts of the city — that portion to be principally benefited thereby — before constructing said works. The works have since been constructed at an expense exceeding $300,000, with money borrowed for the purpose, and for which the bonds of the city have been issued.
It thus appears from the act (section 1) that the object of the statute was, to enable the city to "introduce and distribute through the more compact parts an adequate supply of water for extinguishing fires, and for the use of its citizens, and for other purposes;" and (section 6) that "the expense of constructing, maintaining, and operating said water-works" was to "be levied and assessed upon the taxable inhabitants and property of the precinct, and not on any other part of the city."
The plaintiffs are residents and tax-payers in said city, and have ratable estate solely or mainly outside the precinct. They complain that the city councils, on the fourth of April, 1874, voted to raise, bar taxation of the polls and ratable estate of the entire city, including the polls and ratable estate in the territory of said city outside the limits of the precinct, the sum of $7,400, for water for the use of the fire department of said city, and that upon the polls and ratable estate of the plaintiffs their proportion of said sum of $7,400 has been levied and assessed and committed to the collector for collection, who is collecting
the same and paying it over to the city treasurer, who intends to apply and pay out the same for interest upon the notes and bonds issued to cover the cost of the construction, maintenance, and operation of said water-works, for the current expenses of maintaining and operating the same; for other expenses incident to and growing out of said water-works, and in part payment of the cost of constructing and maintaining the same; and in this the plaintiffs charge that the city is acting illegally and fraudulently.
The defendants deny that the city or its officers have acted illegally or fraudulently in this matter. They admit that the city councils voted to appropriate said sum of $7,400 for water for the fire department, and that the city and its officers intended to apply and pay out all of said sum to the board of water commissioners appointed under said act, for water for the fire department of the city, and for no other purpose whatever; and they deny that any portion of said sum has been paid out for any of the purposes mentioned in the bill.
The vote of the city, of April 4, 1874, to raise $59,000 on the polls and ratable estates within the city, to defray the necessary expenses and charges of the city for the then ensuing year, means the debts legally due from or the expenses properly incurred by the city. Ainsworth v. Dean,21 N.H. 407. There is nothing, therefore, in the form of language of the vote improper or illegal. But the plaintiffs' position is, that the appropriation of $7,400 for water for the fire department is in fact an appropriation to meet the deficiency in the expense of operating the water-works, and the interest on the debt contracted in their construction. Cities undoubtedly have the power to appropriate money for the protection of property against fire — Gen. Stats., ch. 44, secs. 11, 14; and an appropriation to be expended throughout the city, without reference to the limits of the water precinct, cannot be illegal. Section 5 of the act above referred to authorizes the city to contract with individuals and corporations for supplying them with water, and to make such contracts and to establish such regulations and tolls for the use of water as may from time to time be deemed proper. The defendants claim that by virtue of this power the board of water commissioners have established rates and tolls for the use of water for the different purposes for which it may be desired, and among them is a rate and toll of $50 per annum for each public hydrant; and that the sum which it was intended to pay over to the board of water commissioners was the amount of that rate for each public hydrant, as established and actually in use by the city, — most of the hydrants being within the limits of the precinct, but several of them being outside those limits. It is contended that the payment thus intended to be made had reference solely to the actual amount of the tolls for the hydrant service, precisely as would have been the case with any other water-taker, and that it had no reference whatever to the pecuniary results of the waterworks to the precinct; that the terms of the act and the intention of its provisions authorize such payment, and that such payment would be just; that the fire department of the city embraces its whole territory,
and therefore that all the expenses of the department in all sections of the city should be a general charge on the city treasury; that the intended payment would do no injustice to the sections of the city outside the precinct, because the charge for water from the water-works only takes the place of the charges which otherwise would arise to the city treasury from the construction and maintenance of reservoirs and other means for obtaining a supply of water, and from engines and men to throw the water. It is further contended by the defendants that the construction and effect of the act, as claimed by the plaintiffs, would work great injustice to the water precinct, for it would impose on the precinct all the expense of providing water and hydrant service within its limits, without any contribution whatever by other sections of the city in any way therefor, and at the same time leave the precinct still liable to contribution for all the expenses of engine service and water supply in those sections of the city which still remain a charge on the city treasury; and, further, that the precinct would maintain the hydrants which are without its own limits, and supply the necessities of other sections of the city.
This position of the defendants is only partially true. The hydrants, and the supply of water furnished in consequence of the construction of the water-works, would be of no avail without the means and apparatus for using them. For this purpose it will no doubt be admitted there are furnished, at the expense of the whole city — within the precinct as well as without — steamers, engines, hose-carriages, hose, firemen, horses, engine-houses, besides the other numerous articles that go to make up the complete equipment of a well organized fire department. Such facilities are necessarily, from proximity of location, always more serviceable to the compact parts of a city or town than to its more sparsely settled portions. It is claimed that the sections known as Fisherville, West Parish, and East Parish have each its fire company, engine, and other fire apparatus, provided for and sustained by the whole city. This is not denied, and it may doubtless be viewed as in some sort a compensation for their share in the burden of supplying and maintaining a more complete and expensive department for the compact part of the city.
The city councils have undertaken to assess the whole city for the water furnished to the fire department within the precinct. In the first place, it would seem the sum to be so assessed must be determined upon very insufficient data. How is the real value of the water so supplied to be ascertained? The commissioners have fixed it at $50 for each hydrant. Increasing the number of hydrants indefinitely, increases the expense in the same proportion. By what other rule it is assumed that the sum of $7,400 is a fair equivalent for the water furnished by the precinct as compared with expenditures for reservoirs in other sections of the city does not appear. There are intrinsic difficulties in arriving at a just valuation.
Again: the whole city is the owner of the water-works, although practically it is only trustee for the precinct, which ultimately
bears all the losses, if any. The title is in the city; but the precinct, alone being benefited by the works, is bound by law to pay the expense of their construction and operation. How, then, can the city buy water of itself — water which it owns — and then tax its polls and ratable estate to pay for it? The city clearly has the right, under section 5, to make contracts for the supply of water with individuals and corporations, and to establish proper regulations and tolls for the use of water; but it is clear the city cannot contract with itself, nor establish tolls for the water consumed by itself. It is of no consequence how its accounts are kept, nor what contracts it makes with its own agents: we must look to the substance of the transaction. Brown v. Marsh, 21 N.H. 91, 92. The water commissioners are the officers of the whole city and not of the precinct, are elected by the city councils, and, so far as they are answerable for their conduct, are answerable to the city and not to the precinct. The precinct has no organization beyond a territorial existence established by the city councils, its boundaries subject to be modified, enlarged, or altered from time to time as may be deemed advisable. It has no officers who speak and act for it, and it can neither sue nor be sued. Undoubtedly the inhabitants of the precinct have rights, which would be protected in equity upon a proper case being presented; but I think it is clear that the precinct has no claim for water furnished the fire department which can be enforced in a suit either at law or in equity. The fire department of the city embraces its whole territory, and all the expenses of the department in all sections of the city must therefore be a general charge on the city treasury. However just or equitable such a claim may be, it certainly is one which there is no way of enforcing; and I think it must be clear the city councils cannot, in this indirect way, accomplish what cannot be done directly. The form of collecting such a claim by an assessment upon the whole city cannot alter the nature of the transaction. To borrow the appropriate language of GILCHRIST, C. J., upon a similar occasion, — "This is the whole story, and no language can make it plainer; and no system of keeping accounts, and no intentions of the town, however honest they might have been — as they undoubtedly were — can give a different complexion to the affair, or cause it to express a different idea to those who look through the forms in which it is enveloped, and regard, as it is our duty to do, the substance of the transaction." Brown v. Marsh, supra, 92.
It will be noticed that by the language of the enabling act of 1871, section 1, the objects for which the city was authorized to construct its water-works were "for the purpose of introducing and distributing through the more compact parts of said city an adequate supply of water for extinguishing fires, and for the use of its citizens, and for other purposes." And by section 6 it was provided that all taxes levied for the purpose of constructing, maintaining, and operating said water-works, during the time the precinct might exist, should "be levied and assessed upon the taxable inhabitants and property of said precinct, and not on any other part of said city." The object, therefore, of constructing
said works was, to obtain an adequate supply of water within the precinct for extinguishing fires: the expense of maintaining and operating, as well as of constructing the works, is to be borne by the precinct: and in the absence of any express authority in the act for reimbursing the precinct for water used by the fire department, it would seem that the legislature intended, when it provided that the works should be operated and maintained at the sole expense of the precinct, that the other portions of the city should be exempted from every and all expense growing out of their construction and operation; — and if this be so, it clearly follows that this appropriation, of which the plaintiffs complain, is unauthorized and illegal.
For reasons explained by my brother LADD, I think the collection of this tax should not be restrained.
The defendants should be restrained by injunction from paying out of the city treasury said sum of $7,400, or any part thereof, for interest upon the bonds or notes issued to cover the cost of constructing or maintaining the water-works of the city, or for any expense or cost arising from constructing, maintaining, or operating said water-works.
The prayer for a decree to restrain the defendants from collecting said tax is denied.