Gooch v. Town of Exeter

• Decision Date: 15 March 1901
• Citation: 70 N.H. 413,48 A. 1100
• Parties: GOOCH v. TOWN OF EXETER.
• Court: New Hampshire Supreme Court

48 A. 1100

70 N.H. 413

GOOCH

v. TOWN OF EXETER.

Supreme Court of New Hampshire. Rockingham.

March 15, 1901.

Action in assumpsit by one Gooch against the town of Exeter to recover compensation as a police officer. Cause submitted on agreed facts. Case discharged.

Arthur O. Puller, for plaintiff.

Eastman & Hollis and Frink & Marvin, for defendants.

CHASE, J. The statute creates a board of police commissioners for the town of Exeter, consisting of three members, appointed by the governor with the advice and consent of the council. The board is empowered to appoint, remove, and equip the police officers of the town, and fix their pay, and to make and enforce reasonable rules for their government. The police force is to consist of regular officers, not exceeding five, and of special officers as occasion requires. They hold office during the pleasure of the board, possess the powers of police officers and constables, and are to be paid by the town. Laws 1895, c. 188. The defendants challenge the constitutionality of the statute on these grounds: That it takes from the town control of local affairs, to which the town is entitled, that it subjects the inhabitants of the town to taxation without representation, and that the taxation so imposed is unequal and unreasonable.

The constitution confers upon the general court power "to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions, and instructions, either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of this state, and for the governing and ordering thereof and of the subjects of the same, for the necessary support and defense of the government thereof; and to name and settle, or provide by fixed laws for the naming and settling, all civil officers within this state, such officers excepted, the election and appointment of whom are hereafter in this form of government otherwise provided for; and to set forth the several duties, powers, and limits of the several civil and military officers of the state; * * * and to impose and levy proportional and reasonable assessments, rates, and taxes upon all the inhabitants of, and residents within, the said state, and upon all the estates within the same." Const, pt. 2, art. 5. These terms are sufficiently comprehensive to include power to enact a statute like the one under consideration. Police officers are civil officers. Their principal duty is to assist in the preservation of the public peace,—a matter of public concern. They are state or public officers, not town or private officers. 1 Dill. Mun. Corp. §§ 58, GO, 210. The election or appointment of such officers is not provided for in the constitution otherwise than by the grant to the general court of power "to name and settle, or provide by fixed laws for the naming and settling," of all civil officers within the state. The legislature may delegate to towns or town officers authority to select police officers for their respective localities, or place upon them the duty of doing so. State v. Noyes, 30 N. H. 279. Although the power of delegation is not expressly granted by the constitution, it "is implied from the principle of local self-government." Gould v. Raymond, 50 N. H. 260, 276; State v. Hayes, 61 N. H. 264. The legislature may withdraw at will authority thus delegated or Imposed, and exercise it directly or through other agencies. State v. Griffin, 69 N. H. 1, 30, 39 Atl. 200, and authorities cited. While a town possesses the authority, its right to the authority is the right of an agent, not that of an owner. As parts of the governmental machinery (Wooster v. Plymouth, 62 N. H 193, 208, 209), towns may be intrusted with the authority, or required to exercise it, but they cannot demand it. The legislature has made provision for having police officers or constables in all towns. Authority is given to towns and cities generally to elect, or, through their officers, to appoint, such officers, and to regulate local police affairs. Pub. St c. 43, § 25; Id. c. 48, § 15; Id. c. 249. Early in the history of the state the legislature began to exercise its power over such matters directly in reference to particular places. In 1807 an act was passed for regulating the police in the town of Portsmouth. Laws 1811, p. 74. The act of June 28, 1823, required the selectmen of Portsmouth to appoint annually not exceeding seven police officers, and prescribed certain police offenses for the town. It went into effect in Portsmouth without action by the town, and other towns were authorized to adopt any of its provisions. Laws 1823, p. 76. It affords a good illustration of the exercise of legislative power, both directly and indirectly. Recently acts have been passed establishing boards of police commissioners for particular cities and towns, and giving the boards control over local police matters. Laws 1803, cc. 182, 202; Laws 1805, cc. 162, 188, 205. These special statutes seem to create an inequality in the rights and privileges enjoyed by towns and cities, but, when it is considered that the corporations have no inherent rights in the matter of electing or appointing police officers and prescribing police regulations, the seeming inequality fades away. It was said by Carpenter, C. J., in State v. Griffin, 69 N. H. 1, 30, 39 Atl. 260: "The equality of the constitution is the equality of persons, and not of places,—the equality of right, and not of enjoyment. A law that confers equal rights on all citizens of the state, or subjects them to equal burdens, and inflicts penalties on every person who violates it, is an equal law, though no one can enjoy the right, be subjected to the burden, or infringe its provisions, without going to or being in a particular part of the state. It does not discriminate in favor of some at the expense of others." The circumstances pertaining to a town,—Its size, the character of its inhabitants, the public sentiment prevailing among them, the nature and extent of the business carried on in the town, its educational and other institutions, its situation with reference to other communities,—these or other circumstances may make it advisable that the agencies for preserving the public peace in it should differ from those employed generally. Whether legislation of this character in a particular case "be wise, reasonable, or expedient is a legislative, and not a judicial, question." State v. Marshall, 64 N. H. 549, 550, 15 Atl. 210, 1 L. R. A. 51; State v. Griffin, 69 N. H. 1, 31, 39 Atl. 260. Dillon says: "It has been several times determined that the legislature may, unless specially restricted in the constitution, take from a municipal corporation its charter powers respecting the police and their appointment, and by statute itself directly provide for a permanent police for the corporation, under the control of a board of police not appointed or elected by the corporate authorities, but consisting of commissioners named and appointed by the legislature....