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Mark Hayward's City Matters: Dig deep in NH history to find reason for slippery sidewalks

New Hampshire Union Leader

January 01. 2014 7:56PM

'... Extortion and inequality, pure and simple ...'
Following are excerpts from State v Jackman, the 1898 ruling that found a sidewalk-shovel law unconstitutional. The ruling was an appeal of a $5 fine upon the defendant for not shoveling his sidewalk, as required by a Concord city ordinance. The ruling gives first the legal argument on behalf of the state, then Jackman's attorney, Samuel C. Eastman, then the court's ruling.

For the state: Sargent, Hollis & Niles
"A statue or an ordinance requiring the owner of a dog to go to labor or expense in procuring and putting on a collar for the protection of people generally is just as much an exercise of the taxing power as a statute or an ordinance which requires the owner of land to remove snow from the sidewalk in front of his premises for the benefit of himself and the traveling public. ...
"It requires no argument to demonstrate that it is of the greatest importance both for the comfort and convenience of the traveling public and the abutting landowners that the snow and ice should be removed from the sidewalks of a populous city. In the spring of the year, when the rains fall and then snow is melting, it is of the greatest inconvenience and sometimes almost impossible to go over a sidewalk from which the snow has not been removed, without danger of injury to health and limbs."

For the defendant: Eastman
"If the real object of the ordinance is, as just claimed, to relieve the city of the expense of caring for the highways and place the burden upon individuals, it is none the less a tax because it demands the duty in labor and not in money. ...
"The owner of land worth $500 a front foot pays no more per lineal foot of sidewalk than does the owner of land worth only $50 per front foot. There is even a gross inequality between the owners of corner lots and the owners of lots of equal size with only one front on the street."

Ruling: written by Justice Isaac Blodgett
"True, the ordinance is not strictly a law levying a tax, the direct or principal object of which is the raising of revenue; but it is such a law practically both in substance and in effect, and should fairly be so regarded. The amount of expense from which the city is relieved by the operation of the ordinance is equivalent to so much revenue derived from taxation; the additional burden to which the lot owners are subjected is none the less a tax because it is exacted in labor and not in money. ...
"It undeniably imposes a duty and operates as a law creating a burden which does not bear upon all citizens alike, and which makes an unequal division of public expense among taxpayers, in direction violation of the principal of equality which pervades the entire constitution and to which all other purposes and incidental and subordinate. ...
"It is simply an unequal division, for economy and convenience only, of public expense and public burdens, among a class of taxpayers who have not only once contributed and borne their full share agreeably to their constitutional duty, but are are again required to make contribution, not proportionately and according to the value of their property or the benefits they receive, but disproportionately and solely according to the length of the street line of the respective lots. ...
"This is extortion and inequality, pure and simple -- and it is nothing else. ...
"If one public burden may be shifted from the public and cast upon a certain class of property owners, upon consideration of economy, convenience, or peculiar interest, actual or supposed, others may and doubtless will be, for "it is a familiar fact that the corporate conscience is ever inferior to the individual conscience, -- that a body of men will commit as a joint act that which every individual of them would shrink from did he feel personally responsible"; but it cannot be done in this jurisdiction until the constitutional reservations and guarantees intended "as a protection of the subject against the government, and of the weak subject against the powerful subject," are regarded as "glittering generalities" merely, and the reported decisions of three generations of courts are reversed. That time may come, but is has not yet arrived."

The Christmas-New Year holiday season concluded only yesterday, so it's not too late to take up my rendition of that wonderful carol of Christmas in the city, "Silver Bells:"

City sidewalks, slippery sidewalks

Filled with packed snow and ice.

Kinda think you're atop Cannon Mountain.

Ankles achin', hips are breakin',

When you hit a slick patch,

And above all your cussing you hear ...

Not my job; Get someone else.

It's winter-time in New Hampshire.

"Live Free or Die"

Means I won't try

To clear my 'walk of ice.

Once winter snows hit Manchester, as well as most other New Hampshire cities, sidewalks become treacherous for pedestrians. If you walk, you're forced to make a lose-lose choice.

• Sidewalks. On most of them, geological borings could render a layer-by-layer history of winter weather. Wet snow stomped down by pedestrians, which freezes into an uneven, rock-hard path, which thaws and refreezes into smooth sheets of ice, which dry into black ice. And then the cycle starts all over.

• Streets. Snowbanks narrow the streets, but they're smoother than sidewalks and not as slippery. At best you risk sneakers full of slush. At worst a car hits you, and you get a ride to the hospital.

"It's for sh-," said Bryan Hunt-Campbell as he trod along Wilson Street two weeks ago. He spoke three days after the first big storm of the winter. "There's nowhere to walk without getting covered in snow," he said.

In Manchester, road crews do what they can to keep sidewalks clear. Like most cities, Manchester, Nashua and Concord have a priority system: first downtown, then sidewalks around schools and finally all the other sidewalks.

But it's not working, and if cities hire any more workers to clear their sidewalks, it should be a cop with a ticket book. Like in Boston.

In Beantown, a property owner is required to clear his sidewalks three hours after a snowfall ends. The city requires a minimum width - 42 inches. The city website has a page to report sidewalk scofflaws. And fines can be $50 to $200, depending on the property.

Manchester and most cities have similar ordinances on the books. But they can't be enforced thanks to an 1898 ruling by the New Hampshire Supreme Court that found a constitutional right not to shovel your sidewalk.

The judges looked at snow shoveling like people look at everything in New Hampshire - as a tax. Any requirement that people shovel their sidewalks is a tax, the Supreme Court said. And by nature, it can't be applied uniformly because some properties have more sidewalk than others.

(Of course, the judges made no mention of the lack of uniformity when it comes to the service. Downtown and school-area streets get plowed immediately; others can take days, or weeks.)

It's a silly ruling, made by silly judges who were probably mad they had to shovel their sidewalks. And the ruling was made 116 years ago, back when women couldn't vote, birth control was illegal, and anything short of killing a child was called parental discipline.

"I think I could probably speak for all public works directors and road agents in the state that they would love to see that (ruling) changed," said Kevin Sheppard, Manchester director of public works.

Manchester has 137 miles of sidewalks, and crews generally start clearing them right after a snowstorm, Sheppard said. But he notes that plow drivers comprise most of the sidewalk crew, and they need to sleep after long hours of street plowing.

It can take anywhere from three days to a week for a crew of 15 workers and 11 machines to clear the city's sidewalks, Sheppard said.

Of the four cities I contacted, only Keene - a college town with a citizenry of health-oriented walkers and bikers - treats sidewalks like roads. City Manager John MacLean said seasonal workers begin on sidewalks immediately after a storm ends.

Outside of Keene, I suspect that most pedestrians would favor a sidewalk-shovel law. (Such as law would have positive consequences: absentee landlords would quickly accrue hefty fines and start paying attention to their properties.)

And a sidewalk-shovel law seems right for New Hampshire.

Kind of ironic, isn't it. That when it comes to sidewalks, New Hampshire law forces higher taxes and relies on government to clear sidewalks. Where in Michael-Dukakis, liberal-Democratic Massachusetts, people are expected to be responsible and take care of their property.

I hate it when Massachusetts is more New Hampshire than we are.

Mark Hayward's City Matters runs Thursdays in the New Hampshire Union Leader and When not slipping on city sidewalks, he can be reached at

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