Arnold v. City of Manchester

• Decision Date: 12 December 1979
• Docket Number: No. 79-122,79-122
• Parties: William E. ARNOLD v. CITY OF MANCHESTER and City of Manchester Board of Health.
• Court: New Hampshire Supreme Court

Page 1322

409 A.2d 1322

119 N.H. 859

William E. ARNOLD v. CITY OF MANCHESTER and City of Manchester Board of Health.

No. 79-122.

Supreme Court of New Hampshire.

Dec. 12, 1979.

Sheehan, Phinney, Bass & Green, Manchester (Bradford E. Cook, Manchester, orally), for plaintiff.

Charles W. Flower, Jr., City Sol., Manchester, by brief and orally, for defendant city of Manchester.

James M. Winston, Manchester, by brief and orally, for defendant city of Manchester Bd. of Health.

BOIS, Justice.

This is a bill in equity for injunctive relief brought by plaintiff against the city of Manchester and its board of health, following his discharge as city health officer. The Trial Court (Wyman, J.) ruled that the board of health did not have the authority to discharge plaintiff, and ordered his reinstatement. We affirm the court's decree.

Plaintiff was appointed as health officer for the city of Manchester in June 1969 and held that position for nine years. The board of mayor and aldermen had previously changed the requirement that the public health officer be a physician to enable plaintiff, who held only a master's degree in public health, to fill that position. On June 9, 1978, the board of health announced that plaintiff's employment would terminate on June 23, 1978. Alleging that his right to due process had been violated, plaintiff brought this action on June 22, 1978, seeking reinstatement pending an appropriate hearing. The court held several hearings, and ordered the plaintiff reinstated as health officer, ruling that the purported discharge by the board of health was "null, void, and of no effect."

The principal issue in this case is whether the authority to discharge the Manchester public health officer is vested in the board of health or the board of mayor and aldermen. This presents a question of statutory construction.

It is clear that the General Court by private act in 1846 vested the Manchester City Council with all authority then held by the board of health:

All the power and authority now vested by law in the board of health for the town of Manchester, shall be transferred to and vested in the city council, and shall be carried into execution by the appointment of health commissioners, or in such other manner as the city council shall determine.

An Act to establish the city of Manchester, N.H. Laws 1846, ch. 384:20 (hereinafter 1846 Act). This provision was adopted verbatim in the charter of the city of Manchester. Manchester, N.H., Code of Ordinances, Charter § 20 (Municipal Code Corp. 1972). See also Laws of N.H.1853, ch. 1404:22 (similar provision re city of Nashua); Laws of N.H.1855, ch. 1699:20 (similar provision re city of Dover).

In 1867, the General Court by public act enacted a provision similar to the aforementioned private acts:

All the powers vested in the board of health of towns shall be vested in the city councils, and shall be carried into execution in such manner, by such officers, and with such powers, as the city councils shall determine.

Gen.Stat. of N.H.1867, ch. 44:10. This provision has remained unchanged to date. See RSA 47:12 (1970); Rev. Laws of N.H.1942, ch. 66:12; Pub. Laws of N.H.1926, ch. 54:11; Pub.Stat. of N.H.1891, ch. 50:9; Gen. Laws of N.H.1878, ch. 48:9.

In 1885, the General Court enacted a private law entitled "An Act to Establish a Board of Health for the City of Manchester, and Define Its Powers and Duties." It is this act which is the source of controversy. The act provides in pertinent part as follows:

Section 2. The board shall enter upon its duties on the first Monday in February annually; said board shall organize by the choice of one of its members as chairman and another as clerk, and They may adopt such rules and regulations for their own and the government of all subordinate officers by them employed as they may deem expedient, not repugnant to the laws of the state, and the said board shall receive such compensation for their services as the city councils may determine.

Section 3. The board of health hereby constituted shall have and exercise all the powers vested in, and shall perform all the duties prescribed to Health officers of towns under the statutes, and shall have power to appoint such sanitary inspectors as they may deem necessary, and define their duties, term of service, and fix their compensation; Provided (emphasis original), that the whole amount of such compensation shall not exceed the amount appropriated therefor by the city councils; and said inspectors so appointed shall be responsible to the board and under its control and direction; and it shall be the duty of said inspectors, under the direction of said board, to enforce the laws of the state, the ordinances of said city, and the regulations of said board relative to health, and make a report to said board in writing of all acts done by them, as such inspectors, once each month.

(Emphasis added.) N.H. Laws 1885, ch. 165 (hereinafter 1885 Act). Although this act was subsequently amended by the General Court on two occasions, the changes are not material to the issue presented as they do not bear upon the powers or duties of the board of health. See N.H. Laws 1905, ch. 174; N.H. Laws 1965, ch. 495.

Defendants argue that the language of the 1885 Act grants to the board of health the authority to hire and fire the city's health officer. Section 2 of the 1885 Act provides that "they (the board of health) may adopt such rules and regulations for . . . the government of all subordinate officers by them employed as they may deem expedient . . . ." Even if we assume that the category of health officer falls within the meaning of "subordinate officers by them employed," this language does not grant the board the power to hire or fire the health officer, but only to adopt rules and regulations for the proper direction and management of that position. The only reference made to the power to hire or fire is in section 3, which grants the board of health the "power to appoint such sanitary inspectors as they may deem necessary." This language clearly grants no authority to appoint or discharge a health officer. See In re Gamble, 118 N.H. 771, 777, 394 A.2d 308, 311 (1978).

The courts have no function in redrafting legislation to make it conform to an intention not fairly expressed in the language of the statute. Public Service Co. v. State, 101 N.H. 154, 162, 136 A.2d 600, 606 (1957). Private acts especially must be strictly construed. See Beacon Oyster Co. v. United States, 63 F.Supp. 761, 765, 105 Ct.Cl. 227 (Ct.Cl.1946); 2 Sutherland, Statutory Construction § 43.04 (4th ed. C. Sands 1973). The words used must be given their ordinary meaning unless it appears from the context that a different meaning was intended. Londonderry v. Faucher, 112 N.H. 454, 457, 299 A.2d 581, 583 (1972); See Town of Greenland v. Bunker, 118 N.H. 783, 785, 394 A.2d 321, 322 (1978); Orford School Dist. v. State Bd. of Educ., 114 N.H. 60, 63, 314 A.2d 665, 667 (1974). We conclude that a plain reading of the 1885 Act grants no authority to the board of health to hire or fire health officers.

Defendants find an additional grant of authority for the Manchester Board of Health to appoint health officers by virtue of an implied repeal of the 1846 Act by the 1885 Act. They argue that the effect of the 1885 Act was to divest the city of all authority which it held by virtue of the 1846 Act except for the appointment of the members of the board of health. We do not read the 1885 Act to sweep so...