Parker v. Concord , 71 N.H. 468 ( 1902 )

The bill of rights (art. 3 2), the Public Statutes (c. 40, s. 4; c. 50, s. 5), the city charter of Concord (Laws 1849, c. 835, s. 18), judicial decisions here and elsewhere (Eastman v. Meredith, 36 N.H. 284, 300, 301; Bates v. Bassett, 60 Vt. 530; Stetson v. Kempton, 13 Mass. 272, 279; Willard v. Newburyport, 12 Pick. 227, 230; Spaulding v. Lowell, 23 Pick. 71, 76, 80; French v. Quincy, 3 Allen 9, 13; Minot v. West Roxbury,112 Mass. 1, — 17 Am. Rep. 52, 55; Torrent v. Muskegon, 47 Mich. 115, — 41 Am. Rep. 715, 717, 718, 719), leading textbooks upon the subject (Dill. Mun. Corp., s. 30 and notes), the theory and necessities of local self-government, and universal custom and usage under municipal charters, all support and establish the authority of the city council of Concord to purchase land and erect thereon a city building, including a city hall, for municipal purposes.

The fundamental question of municipal power being settled, it only remains to consider whether there is anything in the purpose for which, or the manner in which, the power is being exercised in the present case that entitles the plaintiffs to the interposition of equity by way of injunction, further than the order already made respecting the issuance of bonds.

In the first place, it is urged that the defendants should be restrained from proceeding further because the real intention is not to build a city building and auditorium for municipal purposes, but, under color of such purposes, to erect "an opera house to be let to dramatic companies and others for purposes of entertainment." As to this contention, it is only necessary to say that the resolution of the city council, which is the source of the defendants' authority, in terms provides for a "city hall," or, what is the same in legal effect, a hall for municipal purposes. Furthermore, the court finds that "none of the defendants intend to build except in accordance with the resolution."

Next, it is urged that the defendants should be restrained because the sum proposed to be expended is unreasonable. The bill presents no case for judicial interference upon this ground. The right to determine the cost of the building is vested in the city council as a matter of legislative discretion. So long as they proceed in good faith the court cannot interfere. Bad faith is negatived by the findings of the court. Dill. Mun. Corp. (3d ed.), s. 94; 20 Am. Eng. Enc. Law 1229, 1230; Blood v. Company, 68 N.H. 340, 342, 343; Bates v. Basset, 60 Vt. 530; Dibble v. New Haven, 56 Conn. 199; Torrent v. Muskegon, 47 Mich. 115, — 41 Am. Rep. 715; Des Moines Gas Co. v. Des Moines, 44 Ia. 505 — Am. Rep. 756, 758.

It is further insisted that the defendants should be restrained because the powers they threaten to exercise are vested by law in the city council, and are not delegable. An information in the nature of quo warranto is the appropriate proceeding by which to determine this question. Brown v. Reding, 50 N.H. 336, 349; Osgood v. Jones, 60 N.H. 543. Moreover, if the defendants are without authority, what they may do, until ratified, will create no municipal obligation, and so be harmless as to the plaintiffs. If ratified by the city council, the acts of the committee will become the authorized acts of the city and binding upon the plaintiffs. In either view, the plaintiffs have no standing in equity. Dibble v. New Haven,56 Conn. 199.

In addition to the reasons already suggested why the prayer of the plaintiffs should not be granted, is their "unnecessary, unexplained, and unreasonable" delay in filing their bill, which delay the superior court has found, and we are of the opinion, constitutes laches. The plaintiffs contend that their laches have been waived. The superior court has found otherwise, and we think rightly.

Whatever may be said in favor of a right, notwithstanding past laches, to restrain the further prosecution of something wholly unauthorized, there would seem to be no reason why the doctrine of laches should not apply with full force where, as in the present case, the acts sought to be enjoined are within the power of the city, and the only available objection is to the method of procedure. Chamberlain v. Lyndeborough, 64 N.H. 563, 564, were it to be limited according to the contention of the plaintiffs, would still be decisive against them, upon the facts of the present case.

But while upon the facts alleged in the plaintiffs' bill, which are assumed to be true except so far as modified or contradicted by the finding of the court, the plaintiffs are not entitled to the relief sought, they are not precluded by their delay or laches in bringing this bill from making a new application for an injunction to restrain the defendants from the performance of future illegal or unauthorized acts in the erection of the proposed building. If, ostensibly acting under the resolution which empowers them to build a city hall building, they shall change their present purpose, and shall attempt the erection of a different building, or shall otherwise assume authority in the premises which is not sanctioned by a reasonable construction of the city's powers, ample remedy will be afforded in an appropriate proceeding.

Exceptions overruled.

CHASE, J., did not sit: the others concurred.