Gilbert v. City of Berlin

Decision Date28 June 1912
Citation84 A. 235,76 N.H. 470
PartiesGILBERT, POLICE COM'R, v. CITY OF BERLIN.
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Coos County; Pike, Judge.

Assumpsit by John B. Gilbert against the City of Berlin to recover $12.32 for 616 miles travel from Berlin to Concord and $14 paid for hotel charges. Case transferred from superior court on agreed statement of facts. Case discharged.

The items of expense which the plaintiff seeks to recover were incurred in attending a hearing before the Governor and council in December, 1909. The plaintiff was then a member of the board of police commissioners of the city of Berlin, having been appointed under chapter 160, Laws of 1905. September 30, 1909, charges were preferred by the city council of Berlin against the police commissioners. The seventh and eighth charges alone concerned the plaintiff, and were as follows:

"(7) That the said police commissioners neglected to raid certain places in said Berlin after having been so requested, making it necessary for private individuals to take steps to secure evidence of violations of the criminal laws.

"(8) That said police commissioners illegally issued orders, relative to certain places in said Berlin, concerning the sale of intoxicating liquors."

November 22, 1909, the city council passed the following resolution:

"Whereas, on the 30th day of September, 1909, by vote duly authorized, the city council preferred certain charges of official misconduct against the police commissioners of the city of Berlin, to his Excellency, the Governor of the state of New Hampshire; and whereas, the Governor has appointed December 1, 1909, at the council chamber in Concord, New Hampshire, as the time and place of hearing evidence in support of said charges; and whereas, in order to offer evidence in support of said charges, it will be necessary for the city to summon witnesses to attend said hearing, and employ counsel to assist the city solicitor in presenting said evidence and in looking after the interest of the city in all matters pertaining to said hearing: Therefore, be it resolved, that the expense of summoning witnesses and all other expenses connected with said hearing be defrayed from the miscellaneous appropriation of the said city. Be it further resolved, that the presentation of the city's interests be left with the solicitor, and he be and hereby is, authorized and instructed to employ such additional counsel as may be deemed necessary by him."

The plaintiff was duly notified by the Governor and council of the charges, and that a hearing thereon would be had before them at Concord on December 1, 1909. A hearing was begun on that date and adjourned to December 28th, when it was completed. The plaintiff attended both hearings, and in so doing incurred the items of expense which are the subject of suit. He was not summoned as a witness on behalf of the city, but appeared in answer to the notification from the Governor and council. The charges were not sustained.

Goss & James, of Berlin, for plaintiff.

Matthew J. Ryan, of Berlin, for defendant.

BINGHAM, J. The plaintiff, a police commissioner of the city of Berlin, brings this action against the city to recover certain items of expense incurred by him in attending a hearing before the Governor and council upon charges preferred by the city council against him and his associates, asking for their removal from office because of official misconduct. The plaintiff did not attend the hearing as a witness for the city, but at his own instance and in response to a notice of the hearing given him by the Governor and council. The charges were not sustained.

The plaintiff bases his right to recover (1) upon a vote of the city council providing that "the expense of summoning witnesses and all other expenses connected with said hearing be defrayed from the miscellaneous appropriation of said city," and (2) upon section 4, c. 160, Laws of 1905 (the act creating the board of police commissioners of Berlin), which, after fixing the salaries of the police commissioners, provided that "all the above salaries, as well as the necessary expenses of the commissioners * * * be paid monthly by said city of Berlin, and * * * be in full for all service rendered." A proper consideration of this case, however, involves also an examination of certain other questions in addition to those raised by the plaintiff, namely: (1) Whether the commissioners in the performance of their official duties were the agents and servants of the city, so that it could by vote agree to indemnify them for expenses incurred in defending themselves, or such an agreement could be implied or inferred; and (2) if they were not its servants or agents, whether the city, as a corporation, had such a duty to perform, right to defend, or interest to protect in the subject-matter, with respect to which their official acts were called in question,...

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2 cases
  • Board of Chosen Freeholders of Burlington County v. Conda
    • United States
    • New Jersey Superior Court
    • 30 Noviembre 1978
    ...to enforce the liquor laws of the state. While finding another ground for denial of plaintiff's claim, the court in Gilbert v. City of Berlin, 76 N.H. 470, 84 A. 235 (1912), As they are not the servants or agents of the city, no agreement on its part to indemnify them could be inferred or i......
  • Tremblay v. Berlin Police Union, 5567
    • United States
    • New Hampshire Supreme Court
    • 30 Enero 1968
    ...by the state. Gooch v. Town of Exeter, 70 N.H. 413, 18 A. 1100; Gibbs v. City of Manchester, 73 N.H. 265, 61 A. 128; Gilbert v. City of Berlin, 76 N.H. 470, 84 A. 235; Pollard v. Gregg, 77 N.H. 190, 90 A. 176. However under more recent home rule legislation (Laws 1963, 275:3) the city of Be......

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