Amyot v. Caron

• Court: New Hampshire Supreme Court
• Writing for the Court: ALLEN, Chief Justice
• Citation: Amyot v. Caron, 190 A. 134 (N.H. 1937)
• Decision Date: 02 February 1937
• Parties: AMYOT et al., Finance Commission v. CARON et al., Mayor and Aldermen.

190 A. 134

AMYOT et al., Finance Commission

v. CARON et al., Mayor and Aldermen.

Supreme Court of New Hampshire. Hillsborough.

Feb. 2, 1937.

Exceptions from Superior Court, Hillsborough County; James, Judge.

Mandamus proceeding by Omer H. Amyot and others, finance commission of Manchester, against Damase Caron, and others, Mayer and Aldermen of Manchester. The petition for writ of mandamus was granted, and the defendants bring exceptions.

Exceptions overruled.

Petition, for writ of mandamus brought by the finance commission of Manchester against its board of mayor and aldermen, to direct the defendant board to appropriate $2,200, to pay for services rendered the commission by Felix A. Lapage at their request. This amount has been agreed upon by the commission and Lapage as reasonable. The court granted the petition, and the defendants excepted to the findings and rulings that:

(1) The plaintiffs acted in good faith and engaged Lapage for services reasonably required for the discharge of their statutory duties;

(2) Lapage's employment was that of a trained accountant and not of a clerk; and

(3) the statute creating the commission is valid under the State and Federal Constitutions.

Wyman, Starr, Booth, Wadleigh & Langdell (Ralph E. Langdell orally), of Manchester, for plaintiffs.

Aloysius J. Connor, of Manchester, for defendants.

ALLEN, Chief Justice.

The act (Laws 1921, c. 226) which creates and defines the rights and duties of the Finance Commission of Manchester is outlined in Attorney General v. Bond, 81 N.H. 269, 270, 271, 124 A. 553, 554. As there stated, the members of the commission "must all be inhabitants and qualified voters of the city; * * * their duties relate entirely to the city of Manchester, and their service is rendered solely for the benefit of that city; they are to investigate and report as to its financial affairs (section 2); to veto action of the mayor and aldermen as to appropriating money or raising it by borrowing or taxation, or to reduce the amount so appropriated or raised (section 4); no financial paper can be issued by the city without the approval of the commission (section 5); and they have general control over all money appropriated by the city (section 6)."

In further statement, the commission are to make rules to govern business and financial transactions by any city department, official, or agent, so far as deemed necessary "to insure economy and efficiency." The mayor and aldermen fix their compensation and that "of such clerks" as they may employ; and the commission is authorized to incur such expense as is deemed necessary in conducting its investigations, the expense to be a charge against the city "which shall appropriate funds to pay therefor." In their investigations they may summon witnesses by customary process.

The charge of the commission's bad faith in appointing Lapage as an accountant investigator is not to be sustained. The exception raises only the question whether the evidence required a finding of misfeasance. The position is taken that Lapage was a "clerk," as the word is used in the statute, whose compensation was therefore to be fixed by the mayor and aldermen. He was found to be a "trained accountant familiar with the business and needs" of the city, and as found, there was need to engage him "to collect data relative to the probable requirements of the several departments of the city government," to enable the commission to perform its duty in acting upon appropriations made by the mayor and aldermen. The city's auditor was inexperienced and unable "seasonably to furnish the extensive information" the commission required.

It was not the purpose of the statute that the commission should be hampered in its duties of investigation by granting the mayor and aldermen power to restrict and embarrass it; but if a trained accountant were, within the legislative meaning, to be regarded as a clerk, the opportunity to place obstacles and difficulties in the way of the commission's program of accomplishment becomes apparent. The clerks whose pay is to be fixed by the mayor and aldermen are persons furnishing service of a routine character such as bookkeeping, typing, and stenography, without special executive qualifications and without being in charge of work of special importance. Without exact accuracy of distinction, the Legislature has made division between clerical service of a standardized sort and secretarial engagement of a selective type. Otherwise stated, work customarily paid for at scheduled rates is clerical, while service is not which is of expert ability and skill and for which pay is customarily determined in discretion according to its worth in the special case. Lapage was not a clerk in the statutory sense.

The further point is taken that Lapage was not employed for service in the conduct of the commission's investigations. The argument is that "investigations," in the statutory use of the word, include only special inquiries, in the nature of hearings by an administrative tribunal, into special matters. This is considered a narrow and erosive view calculated to subvert a full operation of the designed scope of the statute. While special investigations are expressly authorized, they are not the only ones contemplated. The commission has a broad and general duty to investigate the city's financial affairs as may be thought required, and particularly for the proper exercise of their right to veto appropriations. A storehouse in which to accumulate statistical and other information in convenient readinesss for use is a reasonable means for the due discharge of their functions. Clearly the amassing and orderly arrangement of such information is a form and process of investigation. Preparation for matters which may arise and call for prompt action is as much a matter of investigation as an inquiry into some particular policy or method in some branch of the city's business. The statute does not exclude general investigations of a preparatory character and undertaken for general use, as occasion therefor may arise.

By the act the supervisory control of the commission over the expenditure of appropriations and its power to make rules and regulations to govern all the city's business transactions are to be exercised to secure "economy and efficiency." That this purpose is the basic reason for the act in its entirety is self-evident. It seems equally self-evident that if this purpose is to be accomplished, investigation, in the legislative contemplation of authority therefor, should have a wide scope with uncontrolled latitude of freedom for the commission in determining the need of investigation. To obtain information or to have it at hand is a proper purpose of an investigation, and the search for it is, in the ordinary usage of the term, an investigation. The act is clear to the effect that no qualified meaning was intended with a result of exposing the commission to obstruction in its authorized sphere of action and 'to impairment of its own efficiency.

The commission in its engagement of Lapage and in its agreement with him for the amount to be paid him has acted within its authority.

In respect to the challenge of the validity of the act, the right of the defendants to contest its constitutionality has been considered. In their official capacity the board of mayor and aldermen do not represent the city, its voters, inhabitants, or taxpayers for the purpose of the contest. The record discloses no corporate or other action authorizing the board to have the question litigated, and the authority they have to administer the city's prudential and municipal affairs includes none to seek the defeat of state legislation.

A party may not "question the validity of a law, or of any part of it, unless he shows that some right of his is impaired or prejudiced thereby." State v. Roberts, 74 N.H. 476, 480, 69 A. 722, 724, 16 L.R.A.(N.S.) 1115. And as a generally established rule, when performance of a ministerial duty by a public officer is sought by mandamus, he may not raise the constitutional issue unless he has a personal interest. The rule is particularly enforced against subordinate officials. Smith v. Indiana, 191 U.S. 138, 148, 24 S.Ct. 51, 48 L.Ed. 125; 6 R.C.L. 92; 12 C.J. 765; 47 L.R.A. 512, note; 24 L.R.A.(N.S.) 1260, note. On the other hand, it has been said: "An unconstitutional act is not a law; it binds no one, and protects no one." Huntington v. Worthen, 120 U.S. 97, 101, 102, 7 S.Ct. 469, 471, 30 L.Ed. 588. It is thought that by the better reasoning and practice the defendants should have the right to raise the issue. In defense they say that the law is invalid and hence that there is no law to compel them to act as the petition seeks to have them commanded. Official duty to act is denied, and any ground claimed in denial may be justly and properly litigated.

The broad contention for unconstitutionality of the act is that there is a fundamental doctrine of a right of local self-government which the act violates.

The entire trend and philosophy of our decisions is in denial of the right, and the question can hardly be regarded as unsettled. The exposition in Wooster v. Plymouth, 62 N.H. 193, 208-211, affirms the course of judicial attitude theretofore expressed upon the subject, and it has since been accepted and followed as the standard and established view. Disaffirmance of the right has been succinctly and concisely announced in Opinion of the Justices, 84 N.H. 559, 578, 149 A. 321, 331, in this language: "Towns are but subdivisions of the state, given certain governmental powers and charged with some local governmental duties. Any part or all of the local duties and obligations may be assumed by the state."

It is not thought that there is occasion to review the cases extensively to ascertain the present state of the law on the subject. There is too slight uncertainty about it. It accords with "the great weight of...