Eaton v. Bragg

• Court: New Hampshire Supreme Court
• Writing for the Court: BLANDIN
• Citation: Eaton v. Bragg, 77 A.2d 589, 96 N.H. 407 (N.H. 1951)
• Decision Date: 02 January 1951
• Parties: EATON et al. v. BRAGG.

Page 589

77 A.2d 589

96 N.H. 407

EATON et al. v. BRAGG.

Supreme Court of New Hampshire.

Jan. 2, 1951.

William H. Sleeper and Wayne J. Mullavey, Exeter, (Mullavey, orally), for the plaintiffs.

Samuel Levy, Portsmouth, and David Strater, York, Me., (Strater, orally), for the defendant.

BLANDIN, Justice.

The basic question is whether the vote of the town to merge the offices of tax collector and town clerk is legal. We believe it is not. Towns have only the powers which the state grants them. Amyot v. Caron, 88 N.H. 394, 190 A. 134 and authorities cited; 62 C.J.S., Municipal Corporations, §§ 107, 115. While there is nothing to prevent the election of the same person to the separate offices of tax collector and town clerk, neither our Constitution not statutes indicates that authority has been given to towns to merge these two offices which the Legislature has kept separate and for which it has prescribed widely different functions. R.L. c. 59, § 16, provides for the removal of a tax collector by the selectmen; § 34 for his removal by the tax commission and § 44 states that no person shall 'be compelled to serve as collector of taxes in any case.' No such provisions appear regarding town clerks. R.L. c. 59, § 41 provides that various officers including tax collectors 'shall severally perform the duties prescribed by law.' (Emphasis ours.) It seems unnecessary to multiply examples of the radical distinctions established by law between the two positions.

In 1947 when it was deemed proper to permit a merger of the offices of tax collector and town manager it was considered necessary to pass a special statute authorizing such action. Laws 1947, c. 236, § 3. Had it been thought this power existed this law would have been unnecessary.

It appears the town seeks to alter substantially the nature of each office under consideration here by adding to it the duties of the other--duties so onerous in the case of the tax collector that ...