De Rochemont v. Holden

• Decision Date: 19 May 1954
• Citation: 99 N.H. 80,105 A.2d 43
• Parties: DE ROCHEMONT et al. v. HOLDEN et al.
• Court: New Hampshire Supreme Court

Page 43

105 A.2d 43

99 N.H. 80

DE ROCHEMONT et al. v. HOLDEN et al.

Supreme Court of New Hampshire.

Argued April 7, 1954.

Decided May 19, 1954.

Jeremy R. Waldron, Jr., Portsmouth, for plaintiffs.

Charles M. Dale, Portsmouth, Burns, Calderwood & Bryant, Dover, Donald R. Bryant, Dover, for defendants.

DUNCAN, Justice.

By this action the plaintiffs assail as unauthorized and negligent the conduct of the selectmen of Newington in selling to the United States certain real estate belonging to the town. In support of their demurrer and plea in bar, the defendants assert that their action was within their jurisdiction and authority as selectmen, that the plaintiffs are without standing to maintain the action on behalf of themselves and other taxpayers, and that their suit is barred by action taken by the voters of the town at the 1953 annual meeting.

Although the plaintiffs' declaration alleges that the defendants acted 'without due care for the interests of the town,' the damages are alleged to have been suffered by the 'plaintiffs and other taxpayers in said town.' It seems plain that if any cause of action arose out of the transactions described in the writ, it was one in favor of the town to which the property belonged, rather than its taxpayers. See Kidd v. New Hampshire Traction Co., 72 N.H. 273, 288, 56 A. 465, 66 L.R.A. 574. Since the claim is against the selectmen however, it would be unreasonable to expect them to enforce it, or to require that the plaintiffs first demand that they do so, before instituting suit on behalf of the town. Id. We think it plain that an action may be brought by taxpayers to enforce a cause of action on behalf of the town, where the selectmen refuse to act, or where a request that they do so would be futile. 18 McQuillin, Municipal Corporations (3rd ed.) s. 52.17. Clapp v. Town of Jaffrey, 97 N.H. 456, 460-461, 91 A.2d 464. Since the writ may be amended to present a cause of action in equity (Blood v. Manchester Electric Light Co., 68 N.H. 340, 39 A. 335; Sherburne v. Portsmouth, 72 N.H. 539, 542, 58 A. 38) on behalf of the town in which any recovery will inure to its benefit (Gates v. Hancock, 45 N.H. 528), and notice may be given to the town (Kidd v. New Hampshire Traction Co., supra; Akscyn v. Second Nat. Bank, 78 N.H. 196, 200, 98 A. 519) the questions presented will be considered as if such amendment had been made.

The defendants' demurrer and plea asserts first that they are under no liability because they acted 'within their jurisdiction and authority as selectmen' and 'in good faith according to their best judgment in their official administrative and judicial capacity.' In the recent case of Moulton v. Beals, 98 N.H. 461, 102 A.2d 489, 490, occasion was presented to consider the nature of the authority of selectmen with respect to the management of suits against the town. The ancient doctrine was then reaffirmed that selectmen are not general agents of the town 'clothed with the general powers of the corporate body for which they act', but 'can only exercise such powers * * * as are properly incident to the special and limited authority conferred on them by their office.' Rich v. Town of Errol, 51 N.H. 350, 354. In this respect their powers differ from those of city councils whose acts 'are the acts of the city.' Lucier v. City of Manchester, 80 N.H. 361, 362, 117 A. 286, 287; Blood v. Manchester Electric Light Co., 68 N.H. 340, 341, 39 A. 335; R.L. c. 66, § 1.

There can be no question of the authority of the town itself to sell and convey its real estate. R.L. c. 51, § 3 provides in part: 'Towns may purchase and hold real and personal estate for the public uses of the inhabitants, and may sell and convey the same'. This power has been exercised from the earliest days. See Cofran v. Cockran, 5 N.H. 458; Goodale v. Wheeler, 11 N.H. 424; Crystal Spring Finishing Co. v. Town of Freetown, 314 Mass. 315, 317, 50 N.E.2d 34. The powers of a town reside in its inhabitants. Its government, unlike that of a city, is not representative (State v. Wimpfheimer, 69 N.H. 166, 169, 38 A. 786) but democratic in from. Selectmen are not authorized to exercise the powers of the town, but only to manage its prudential affairs and to perform the duties by law prescribed. R.L. c. 59, § 11. Their duties 'with respect to prudential affairs' empower them to do 'only such acts as are required to meet the exigencies of ordinary town business' (Moulton v. Beals, supra), and no specific statutory power to sell and convey real estate of the town is conferred. The sale of the town's real estate is not to be classified as its 'ordinary business,' nor does it fall within the class of 'pecuniary matters' embraced in 'prudential affairs.' See Carlton v. Bath, 22 N.H. 559. Cf. West v. Town of Errol, 58 N.H. 233. And so in Carlton v. Bath, supra, in holding that the selectmen did not have a power which they had assumed to exercise without authorizing vote of the town, the court remarked that the power in question fell 'but little, if any, short of that to execute a deed.' Id., 22 N.H. 568. We hold that the valid sale of real estate belonging to a town requires that the town itself through its inhabitants exercise the power conferred upon it by the Legislature. See Urch v. City of Portsmouth, 69 N.H. 162, 44 A. 112; Goodale v. Wheeler, supra; Cofran v. Cockran, supra; Lumbard v. Trask, 9 Metc. 557, 50 Mass. 557; Crystal Spring Finishing Co. v. Town of Freetown, supra. The defendant selectmen had no power by virtue of their office to sell the town's real estate.

The defendants assert secondly that the power of the town was exercised by it at its 1953 annual meeting when articles 7 and 8 of the warrant were adopted. These articles provided as follows:

'7. To see if the town will vote to use the sum of $10,000 of the funds received from the United States of America for the taking of land in the town, for the purpose of creating a capital reserve fund for the construction, re-construction or alteration of the town buildings and acquisition of highway building, repairing and maintenance of equipment.

'8. To see if the town will vote to appropriate the sum of $5,730 of the funds received from the United States Government for the taking of land in the town, to be used in the general revenue...