Municipal war expenditures — Reimbursement — Division of towns.
The plaintiffs contend that, at the time the old town of Sanbornton was divided — June, 1869 — there was no claim or demand in favor of the town or debt due to the town of Sanbornton, on account of the bonds involved in this suit, or on account of the expenditures for which the bonds were subsequently issued, and that neither the bonds nor any right or claim of Sanbornton to them was property, debt, claim, or demand owned by or due to Sanbornton, to be divided pursuant to section 2 of the act incorporating Tilton; that, although the reimbursement acts refer to the war expenditures of the towns, cities, c., as an indebtedness of or claim against the state, they became such only by reason and because of the enactment, and the enactment was itself merely a change in the policy of the law in giving the credit of the state to the towns, and thus throwing the burden of the municipal war expenditures as a common burden upon the people of the whole state, instead of leaving the burden distributed among the same people in their municipal character, as cities, towns, c.; and that upon these views the county commissioners had no authority, under the act incorporating Tilton, to make division of the bonds between the two towns.
The defendants contend, that although the bonds, eo nomine, were not in existence at the passage of the act incorporating Tilton, and no legal or equitable right or claim to be reimbursed for war expenditures existed in favor of Sanbornton against the state until the passage of the reimbursement acts, yet the expenditures had been incurred, and existed as the basis of the bonds subsequently authorized, and by the reimbursement acts made a claim which brought the bonds growing out of the claim within the provisions of the act incorporating Tilton, and made them subject to division by the county commissioners.
These parties have been before the court twice previously, in which the question of the division of these bonds was considered, and I see no reason to change the result which has been heretofore reached. At the September term, 1872, of the supreme court for this county, a bill in equity was entered by the town of Tilton against the town of Sanbornton and the state treasurer, asking for a division of these bonds. At the December term, 1872, the bill was dismissed, upon the ground that the county commissioners were the only tribunal designated by the legislature to make partition of the property of the old town between the two new towns, and, consequently, that the court had no jurisdiction of an application for partition.
After the partition made by the commissioners, the town of Sanbornton filed a bill at the June term, 1873, of the supreme court for this county, against the town of Tilton and the state treasurer, reported in53 N.H. 438, praying that the treasurer might be restrained by injunction from paying over to the town of Tilton any part of said bonds, and that the town might be restrained from receiving them. The hearing upon the application for a temporary injunction was adjourned into the
full court, and at the same term it was refused. The court then held, — the decision being delivered by SARGENT, C. J., — that the amount awarded to the several towns under the reimbursement acts was designed to be in the nature of, and to be treated as, a debt due from the state to the towns for a portion of the amount expended by the towns in furnishing men for the service of the United States in the late war; also, that, as the act dividing the town of Sanbornton provided that all property, and all debts, claims, and demands of every kind, owned by and due to the town, should be divided between the two new towns in a certain proportion, the amount assigned to the old town under the reimbursement acts should be divided between the two new towns in the same proportion.
We are asked by the plaintiffs to reconsider these questions, upon the ground that the questions as now presented have never been fully considered and decided by the court. It would be a somewhat remarkable occurrence, if these questions should twice come before the court, and fail on both occasions to be fully considered. It could not be, certainly, from lack of vigilance on the part of able counsel to present the questions intelligently to the court, while the case, as reported in 53 N.H. 438,442, shows that the complaint now made — that the court did not fully consider or decide these questions — is unfounded.
We have, however, considered this case, as it is now presented to the court, as fully as we have been able to, but without coming to a different conclusion. By the second section of the act constitution the town of Tilton, approved June 30, 1869, it is provided that "all real and personal property, including all debts, claims, and demands of every kind now owned by and due to the town of Sanbornton, all school and other funds belonging to said town, and the proportion of the literary fund, which, until a new apportionment of state taxes, shall be payable to said towns, shall be divided between them in the proportion of four dollars and fifty cents to Sanbornton and five dollars and fifty cents to Tilton. And if said towns cannot agree upon the division of any such property, the county commissioners of the county of Belknap, for the time being, upon the request of either town, may make division of the same, or assign the same, or any part thereof, to either of said towns, and may order the town to which such property may be assigned to pay over such sums of money to the other town as in their opinion is equitable, according to the foregoing proportion, and may fix the time of payment."
The plaintiffs lay great stress in the argument on the words "now owned by and due," claiming that the legislature only provided for a division of claims and demands due to the town of Sanbornton at the time of the passage of the act. It is hardly to be presumed that the legislature intended to provide for a portion of the demands and claims belonging to the town, and leave the remainder unprovided for and subject to contention.
The act took effect upon its passage, so that any claims or demands that accrued subsequent to the passage of the act, would accrue in favor
of the new town of Sanbornton as it has been constituted since the severance of Tilton from its territory. The two new towns being two distinct municipalities from and after June 30, 1869, neither could have any interest in any claims or property accruing to the other after the separation. But as to all claims existing at the time of the separation, it is hardly possible that the legislature would intentionally make provision for a portion only of the same.
But the plaintiffs contend that there are claims that accrued to the plaintiffs since June 30, 1869. Let us see if this position is correct. Nominally, it may be so; but how is it, really and substantially? The act of 1870 (1 Sess.
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Municipal war expenditures — Reimbursement — Division of towns.
The plaintiffs contend that, at the time the old town of Sanbornton was divided — June, 1869 — there was no claim or demand in favor of the town or debt due to the town of Sanbornton, on account of the bonds involved in this suit, or on account of the expenditures for which the bonds were subsequently issued, and that neither the bonds nor any right or claim of Sanbornton to them was property, debt, claim, or demand owned by or due to Sanbornton, to be divided pursuant to section 2 of the act incorporating Tilton; that, although the reimbursement acts refer to the war expenditures of the towns, cities, c., as an indebtedness of or claim against the state, they became such only by reason and because of the enactment, and the enactment was itself merely a change in the policy of the law in giving the credit of the state to the towns, and thus throwing the burden of the municipal war expenditures as a common burden upon the people of the whole state, instead of leaving the burden distributed among the same people in their municipal character, as cities, towns, c.; and that upon these views the county commissioners had no authority, under the act incorporating Tilton, to make division of the bonds between the two towns.
The defendants contend, that although the bonds, eo nomine, were not in existence at the passage of the act incorporating Tilton, and no legal or equitable right or claim to be reimbursed for war expenditures existed in favor of Sanbornton against the state until the passage of the reimbursement acts, yet the expenditures had been incurred, and existed as the basis of the bonds subsequently authorized, and by the reimbursement acts made a claim which brought the bonds growing out of the claim within the provisions of the act incorporating Tilton, and made them subject to division by the county commissioners.
These parties have been before the court twice previously, in which the question of the division of these bonds was considered, and I see no reason to change the result which has been heretofore reached. At the September term, 1872, of the supreme court for this county, a bill in equity was entered by the town of Tilton against the town of Sanbornton and the state treasurer, asking for a division of these bonds. At the December term, 1872, the bill was dismissed, upon the ground that the county commissioners were the only tribunal designated by the legislature to make partition of the property of the old town between the two new towns, and, consequently, that the court had no jurisdiction of an application for partition.
After the partition made by the commissioners, the town of Sanbornton filed a bill at the June term, 1873, of the supreme court for this county, against the town of Tilton and the state treasurer, reported in53 N.H. 438, praying that the treasurer might be restrained by injunction from paying over to the town of Tilton any part of said bonds, and that the town might be restrained from receiving them. The hearing upon the application for a temporary injunction was adjourned into the
full court, and at the same term it was refused. The court then held, — the decision being delivered by SARGENT, C. J., — that the amount awarded to the several towns under the reimbursement acts was designed to be in the nature of, and to be treated as, a debt due from the state to the towns for a portion of the amount expended by the towns in furnishing men for the service of the United States in the late war; also, that, as the act dividing the town of Sanbornton provided that all property, and all debts, claims, and demands of every kind, owned by and due to the town, should be divided between the two new towns in a certain proportion, the amount assigned to the old town under the reimbursement acts should be divided between the two new towns in the same proportion.
We are asked by the plaintiffs to reconsider these questions, upon the ground that the questions as now presented have never been fully considered and decided by the court. It would be a somewhat remarkable occurrence, if these questions should twice come before the court, and fail on both occasions to be fully considered. It could not be, certainly, from lack of vigilance on the part of able counsel to present the questions intelligently to the court, while the case, as reported in 53 N.H. 438,442, shows that the complaint now made — that the court did not fully consider or decide these questions — is unfounded.
We have, however, considered this case, as it is now presented to the court, as fully as we have been able to, but without coming to a different conclusion. By the second section of the act constitution the town of Tilton, approved June 30, 1869, it is provided that "all real and personal property, including all debts, claims, and demands of every kind now owned by and due to the town of Sanbornton, all school and other funds belonging to said town, and the proportion of the literary fund, which, until a new apportionment of state taxes, shall be payable to said towns, shall be divided between them in the proportion of four dollars and fifty cents to Sanbornton and five dollars and fifty cents to Tilton. And if said towns cannot agree upon the division of any such property, the county commissioners of the county of Belknap, for the time being, upon the request of either town, may make division of the same, or assign the same, or any part thereof, to either of said towns, and may order the town to which such property may be assigned to pay over such sums of money to the other town as in their opinion is equitable, according to the foregoing proportion, and may fix the time of payment."
The plaintiffs lay great stress in the argument on the words "now owned by and due," claiming that the legislature only provided for a division of claims and demands due to the town of Sanbornton at the time of the passage of the act. It is hardly to be presumed that the legislature intended to provide for a portion of the demands and claims belonging to the town, and leave the remainder unprovided for and subject to contention.
The act took effect upon its passage, so that any claims or demands that accrued subsequent to the passage of the act, would accrue in favor
of the new town of Sanbornton as it has been constituted since the severance of Tilton from its territory. The two new towns being two distinct municipalities from and after June 30, 1869, neither could have any interest in any claims or property accruing to the other after the separation. But as to all claims existing at the time of the separation, it is hardly possible that the legislature would intentionally make provision for a portion only of the same.
But the plaintiffs contend that there are claims that accrued to the plaintiffs since June 30, 1869. Let us see if this position is correct. Nominally, it may be so; but how is it, really and substantially? The act of 1870 (1 Sess. Laws 412) is entitled "An act to authorize a limited reimbursement of the municipal war expenditures." Section 1 authorizes the issue of bonds, to "be devoted exclusively toward the reimbursement of the expenditures incurred by the cities, towns, locations, or grants of the state for war purposes during the rebellion upon the following basis: each city, town, location, or grant shall receive from the state one hundred dollars for every man furnished for the military service of the United States, under and after the call of July 2, 1862, and accepted by the United States for the term of three years, and in the same proportion for every man so furnished and accepted for whatever period, and the same shall be in part payment for any claim upon the state on account of its war debts, by any such city, town, location, or grant."
The title to this act recognized the issue of the bonds as a limited reimbursement of these war expenditures by the towns; and the act provides that it shall be in part payment for any claim upon the state on account of such war debts. The issue of these bonds by the state is placed distinctly upon the ground, not that they are a gratuity to the towns, but a payment of the claims of the towns upon the state for such extraordinary expenditures. They were expenditures, not for the ordinary and usual purposes for which towns are organized, but for an extraordinary purpose more legitimately belonging to the state, and shifted by the state, for various reasons, upon the towns, in the perilous emergency in which the state and nation were placed, and which the state subsequently assumed in the manner provided by the acts of 1870 and 1871.
Section 2 of the act of 1871 provides that whenever the quota of each city, town, c., as ascertained by the commissioners, shall be ready for payment, "and the said quota or claim shall be actually paid by the treasurer, under the direction of the governor with the advice of the council, to such cities, towns," c., "as may be entitled to receive the same," c.
When the suit in equity was before the court in June, 1873, it was assumed that the award of the commissioners was to the old town of Sanbornton, for the full amount of $22,483.33; and the tabular statement which had been used in the office of the state treasurer contained the name of Sanbornton only. It appears now, however, from the report of the referee, for the first time in the course of the litigation which has been carried on between these towns, "that, about June 1,
1872, the commissioners filed for record in the adjutant-general's office a tabular statement, signed and certified by them to be a true record, setting forth in separate columns the names of the cities and towns, c., entitled to the reimbursement, the number of men furnished, and length of service, and the amount in dollars and cents of reimbursement. In the first column in this table is entered "Sanbornton and Tilton." Against this entry is entered, in the second column, the number of men and times of service, as stated in the report, to have been furnished by Sanbornton; and against it, in the third column, the sum "$22,483.33."
The second section of the act of 1870 (1 Sess. Laws 413) provided that "a commission appointed by the governor and council shall determine the amount to which each city, town, location, or grant is entitled." Here, it will be observed, the legislature provided for a tribunal to ascertain and determine the amount to be reimbursed to the several towns, with no provision for any appeal, or resort to any other tribunal. Their action was to be final and conclusive. And it will be noticed that, by the act of 1871, sec. 2 (1 Sess. Laws 513), whenever the quota of each town, "as ascertained by the commissioners," shall be ready for payment, "and the said quota or claim shall be actually paid by the treasurer, under the direction of the governor with the advice of council, to such cities, towns, c., as may be entitled to receive the same, then," c., — the legislature again providing for ascertaining the claim of each town by the commissioners, and for its payment by the treasurer, under the direction of the governor and council.
The commissioners, under the authority of these acts, awarded to the towns of Sanbornton and Tilton, and not to Sanbornton alone, as was erroneously supposed in the former suit between these parties — reported53 N.H. 438 — the sum of "$22,483.33," without designating the sum to which each town was entitled.
It further appears, from the report of the referee, that, upon the application of the town of Tilton to the county commissioners of this county, on April 9, 1873, they, on the 19th of May, 1873, awarded that said bonds should be divided between the two towns in the same proportion provided in the act of 1869, for dividing the claims, demands, and other property of the old town between the two new towns, viz., $12,365.83, or eleven twentieths, to Tilton, and $10,117.50, or nine twentieths, to Sanbornton, which sums the governor and council authorized the state treasurer to deliver to the respective towns, August 22, 1873.
I cannot see why the action of these different tribunals does not dispose of the whole matter. It is quite apparent that the legislature regarded the issuing of these bonds as a payment to the towns of their claims upon the state for extraordinary expenditures during the war, which did not legitimately belong to the towns, but which it was eminently just and proper the state should assume. Whether the award be considered an award to the two new towns, or to the old town, it seems clear beyond question that the legislature intended it should be
regarded in the nature of a repayment of the war debts of the towns. It would be signally unjust that the award should be made to that portion of the old town comprised within the limits of the present town of Sanbornton, when the territory comprised within the limits of Tilton bore its proportionate share of the burden. As was remarked by SARGENT, C. J., in53 N.H. 441, — "It seemed just and equitable, if this debt was to be repaid in any part, that it should be repaid to the towns in the same proportion in which they had assumed the debt which was thus repaid."
The bonds, eo nomine, did not exist at the time the act of 1869 was passed; but they are the evidence of the claim, which the state has since recognized, that the town then had against it, and are in fact a substitution for that claim. It cannot be contended that they were a gratuity to the town: the whole drift and tenor of the language of the acts of 1870 and 1871 are in the opposite direction, as I have attempted to show: they were intended by the legislature in part payment of the extraordinary and unusual burdens which the state compelled the towns to bear in a time of imminent peril to the nation, — burdens which in no sense belonged to the towns as towns to bear, but which properly and naturally belonged to the state and national governments, — and which the national and different state governments have, since the close of the war, recognized in various ways. If the necessities of this case required it, we might hold, as the defendant has argued, that "the word `claims,' either in its etymological or legal sense, does not imply a legal or actual right merely: a supposed right, legal, equitable, moral, or otherwise, or a right claimed, is included within the meaning of that word." In the restricted sense contended for by the plaintiffs, a "claim" would be something which could be enforced by legal process. If that be so, neither the bonds, nor the original claim of the town by reason of these extraordinary expenditures, are a claim against the state, because no suit at law or in equity lies against it.
From whatever point of view this question is examined, I can come to no other conclusion than the one that these bonds should be treated as payment of the claim which the town of Sanbornton had against the state, at the time of the passage of the act, June 30, 1869, constituting the town of Tilton, by reason of their extraordinary expenditures in time of war in behalf of the state; and if this result is correct, there should be judgment on the report of the referee for the defendants for costs.