Baker. v. City of Nashua

• Decision Date: 17 July 1914
• Citation: 91 A. 872,77 N.H. 347
• Parties: BAKER et al. v. CITY OF NASHUA. POLLARD et al. v. SAME.
• Court: New Hampshire Supreme Court

91 A. 872

77 N.H. 347

BAKER et al.

v. CITY OF NASHUA.

POLLARD et al.

v. SAME.

Supreme Court of New Hampshire. Hillsborough.

July 17, 1914.

Exceptions from Superior Court, Hillsborough County.

Actions by George E. Baker and others and by Harvey Pollard and others against the City of Nashua. Rulings were made in favor of plaintiffs in each case, and the city brings exceptions. Overruled.

After the rescripts in Pollard v. Gregg, 77 N. H. 190, 90 Atl. 176, and Baker v. Barry, 77 N. H. 198, 90 Atl. 180, were transmitted to the superior court, the plaintiffs amended both actions by making the city of Nashua a party defendant and by filing declarations in assumpsit. Upon a hearing, the court found (1) that the police commissioners acted in good faith, and (2) were not guilty of a breach of trust, and (3) that the plaintiffs in both actions were entitled to recover from the city, and (4) ruled that the commission had power to pledge the credit of the city over and above the amount appropriated by the city councils for the use of the police department. To these findings and rulings the city of Nashua excepted.

Wason & Moran, George F. Jackson, and Doyle & Lucier, all of Nashua, and Remick & Jackson, of Concord, for plaintiffs. Henry A. Burque, of Nashua, for City of Nashua.

PER CURIAM. 1. There was evidence from which it could be found that the police commissioners acted in good faith, both in removing the old officers and in appointing the new ones, and that they were not guilty of a breach of trust. The city therefore takes nothing by its first and second exceptions.

2. This is also true of its third exception, in so far as the right of the plaintiffs to recover is a question of fact. Since the commission acted in good faith in appointing the plaintiffs in the first action, they are entitled, in any permissible view of the law, to recover compensation as fixed by the commission (Cousins v. Manchester, 67 N. H. 229, 38 Atl. 724); for they are not only officers de jure, but have performed all the duties of the office. Although the plaintiffs in the second action are officers de jure, they have not performed any of the duties of the office. The question therefore, in so far as they are concerned, is whether that fact is an answer to the action. Although some courts hold that a de jure officer cannot recover under such circumstances when the salary has been paid to a de facto officer without notice of the former claim, most courts hold that the simple fact that an officer de jure has not performed the duties of his office is no defense to an action to recover the salary attached to the office. Andrews v. Portland, 79 Me. 484, 10 Atl. 458, 10 Am. St. Rep. 280; State v. Carr, 129 Ind. 44, 28 N. E. 88, 13 L. R. A. 177, 28 Am. St. Rep. 163. This rule obtains in this state. Stone v. Towne, 67 N. H. 113, 29 Atl. 637. The question as to the rights of de facto officers, discussed in the defendants' brief, is not before the court. Peterson v. Benson, 38 Utah, 286, 112 Pac. 801, Ann. Cas. 1913B, 640, 32 L. R. A. (N. S.) 949, note.

3. Chapter 148, Laws 1913, creates the police commission and prescribes its duties. Section 4 provides:

"It shall be the duties of said police commissioners to appoint such police officers * * * as they may in their judgment deem necessary, and to fix their compensation."

Section 8 repeals so much of section 8, c. 208, Laws 1891, the Public Statutes, the laws and ordinances of the city, and the city charter, as are inconsistent with the provisions of chapter 148.

If the language of section 4 is to...