Wiggin v. City of Manchester

• Decision Date: 07 June 1904
• Citation: 58 A. 522,72 N.H. 576
• Parties: WIGGIN v. CITY OF MANCHESTER.
• Court: New Hampshire Supreme Court

58 A. 522

72 N.H. 576

WIGGIN

v. CITY OF MANCHESTER.

Supreme Court of New Hampshire. Hillsborough.

June 7, 1904.

Transferred from Superor Court; Wallace, Judge.

Assumpsit for services by Frank P. Wiggin against the city of Manchester. The facts were agreed, and the case was transferred from the superior court Judgment for plaintiff.

At a meeting of the lands and buildings committee of the board of mayor and aldermen of Manchester held March 21, 1903, Charles W. Skinner was employed as janitor of the police station for one year from the 1st day of the following April. In making the contract of employment, the committee acted under the provisions of section 2, c. 34, Laws and Ordinances of the City of Manchester, which is as follows: "The joint standing committee on lands and buildings shall have the care of all other buildings belonging to the city. They shall employ a janitor to take charge of the courthouse. * * * The said committee may also employ such persons as may be necessary to take charge and care of the other buildings of the city." Skinner entered upon the discharge of his duties on April 1, 1903.

April 6, 1903, the police commissioners of Manchester, acting under chapter 324, p. 353, Laws 1903, appointed the plaintiff as janitor of the police station, and he entered upon the discharge of his duties on the same date. He has never been notified by the lands and buildings committee or by the police commissioners to leave the employ of the city, but the municipality, through its proper officers, has refused to pay him for his services, or to recognize his claim to the position. He still continues to perform the duties of janitor at the police station, with the knowledge and approval of the police commissioners.

There was no necessity for the services of an additional janitor when the plaintiff was appointed, and there is none now. There was no cause for discharging Skinner, and no reason for terminating contractual relations with him, except as shown by the facts herein stated. He has not been discharged by the board of mayor and aldermen or by the lands and buildings committee, and still continues to act as janitor. The city has accepted his services and recognized him as janitor. He has not been so recognized by the police commissioners, his bill for services has not been approved by them, and he was notified by them that his services were no longer necessary at the time of the plaintiff's appointment. There was no vacancy in the position of Janitor when the plaintiff was appointed, unless the facts herein stated show a vacancy.

If, upon the foregoing facts, the plaintiff is entitled to recover, he is to have judgment for $454, in full for all services to November 19, 1903.

Taggart, Tuttie, Burroughs & Wyman, for plaintiff.

George A. Wagner and Oliver E. Branch, for defendants.

PARSONS, C. J. The question whether the Legislature has power to establish, by appointment of the state executive, boards of police commissioners, who should have control over local police matters, including the appointment of police officers and the determination of the amount of their compensation was determined affirmatively in Gooch v. Exeter, 70 N. H. 413, 48 Atl. 1100, 85 Am. St. Rep. 637. The decision was upon the ground that the "principal duty" of the police "is to assist in the preservation of the public peace—a matter of public concern"— and that "they are state or public officers, not town or private officers." Page 414, 70 N. H., 48 Atl. 1100, 85 Am. St Rep. 637; Burch v. Hardwicke, 30 Grat. 24, 32 Am. Rep. 640; City of Newport v. Horton (R. I.) 47 Atl. 312, 50 L.R. A. 330. The transfer to such commissioners, for the use of the police under their control, of station houses and other machinery provided by the municipality for police purposes. Is valid, since the property is still applied to the use for which it was dedicated, and the only change is in the agency by which the use is directed. Dill. Mun. Corp. (2d Ed.) § 34; Baltimore v. State, 15 Md. 376, 74 Am. Dee. 573, 585, 586. The Legislature therefore has power to give such police commissioners control over a station house—a building the use of which is essential to the conduct of the police of the city—by giving to them the control of the care of the building. Authority to make such change is necessarily included in the power to transfer the police from municipal to state control. In 1893 the powers possessed by the municipal officers of Manchester "in relation to the appointment and removal, the uniforming and organizing, of police officers of the city," were transferred to and vested in a board of police commissioners appointed by the Governor and council. Laws 1893, p. 176, c. 202, §§ 1, 3.

Whether, by necessary intendment, it must be understood that the commissioners were given by this act such control over the station houses and other buildings or apparatus dedicated to the use of the police force that none of the municipal officers could interfere in their use and control of them, need not be considered, for the Legislature in terms otherwise expressed its purpose in the matter. Having the power to make such change, whether such change was intended is to be inferred from the language used, which is as follows:

"An act in relation to the powers and duties of police commissioners of Manchester. * * *

"Section 1. It shall be the duty of the police commissioners of the city of Manchester to appoint a janitor for the care of the police station and fix his compensation therefor.

"Sec. 2. All acts and parts of acts inconsistent with this act are hereby repealed, and this act shall take effect upon its passage."

Laws 1903, p. 353, c. 324.

This act was approved April 2, 1903. Acting under the authority supposed to be conferred thereby, the police commissioners on April 6, 1903, appointed the plaintiff janitor of the police station, and he entered upon the discharge of his duties on that date, and has continued "to perform the duties of janitor at the police station, with the knowledge and approval of the police commissioners." In other words, as the employé or appointee of the police commissioners, the plaintiff has performed all the services required of him to their satisfaction; and the sole question in this case is whether he is entitled to be paid the compensation for services which he has rendered at the request of the commissioners, which, under the statute, they have fixed upon. There is no controversy as to the amount which the plaintiff is entitled to recover, if he can recover at all. There is no contention, therefore, that the commissioners have awarded anything but reasonable compensation for the service performed. Under these circumstances, as it has been decided the Legislature had power to confer the authority to appoint upon the commissioners, why should not the plaintiff have his pay? It is not claimed that there is anything in the language by which the Legislature expressed its purpose from which any inference against the plaintiff's right can be drawn.

It is said that certain facts appear by parol from which the court must attach a condition to the exercise of the power, which is not contained in the written expression of the legislative purpose. These facts are as follows: Prior to the passage of the act. one Skinner had been employed by the municipal authorities of the city as janitor of the police station for one year. It is found or agreed that there was no necessity for the appointment of an additional janitor when the plaintiff was appointed, and that when he was appointed there was no vacancy in the position of janitor, unless the facts stated show a vacancy.

It is urged that Skinner held a contractual relation as employé with the city government, the obligations of which the Legislature could not impair, and that, as an additional janitor was unnecessary, the power conferred upon the commissioners must have been conferred upon the condition that it should not be exercised until Skinner's contract of employment expired. The facts relied upon stand as the conclusions of the trial court. It does not appear that the Legislature knew of Skinner's contract, or held the opinion that only one janitor was necessary. The facts surrounding the parties at the time, and in contemplation of which the language was used, may be referred to, to ascertain what the language meant to the parties, but it is an elementary proposition that a written instrument cannot be modified or controlled by parol evidence. If the Legislature did not pass the act understanding that Skinner held a valid contract for a year, there is no force to the argument Whether they did so understand or not, there is no evidence except the act itself. The failure to make any reference to Skinner's contract, or to insert the condition which it is now proposed to read into the act, tends to establish that the Legislature did not understand such to be the character of Skinner's contract, rather than that they meant the act to be read with the provision suggested. The argument is merely a contention as to what the Legislature would probably have done if they had understood the facts as now found. That they did not so provide establishes that they did not so understand, rather than that they did what they did not do. Whether the Legislature were right or wrong in their probable conclusion (if they knew anything of the fact) that Skinner's contract was invalid, has not yet been decided. If wrong, so much of the legislative purpose as tended to impair the obligation of his contract must fail of execution. But the question of Skinner's rights cannot affect the plaintiff's right to recover, because so much of the act as authorized the commissioners to employ a janitor is within the legislative power. The main purpose of the act was to place the janitorship under the control of the police commissioners. There is no reason why this purpose should be defeated by want of...