Rogers v. City of Concord

• Decision Date: 28 March 1962
• Citation: 104 N.H. 47,178 A.2d 509
• Parties: Leslie J. ROGERS v. CITY OF CONCORD.
• Court: New Hampshire Supreme Court

Page 509

178 A.2d 509

104 N.H. 47

Leslie J. ROGERS v. CITY OF CONCORD.

Supreme Court of New Hampshire.

Argued Dec. 5, 1961.

Decided March 6, 1962.

Rehearing Denied March 28, 1962.

Upton, Sanders & Upton, Robert W. Upton, Concord, for plaintiff.

Sulloway, Hollis, Godfrey & Soden, James B. Godfrey, Concord, for defendant.

BLANDIN, Justice.

The plaintiff's attack upon the validity of the layout centers upon the proposition that the Mayor and Board of Aldermen were acting judicially and that the Board which was inaugurated on January 11, 1960, contained five new members of a total of fifteen, had no jurisdiction to pass upon the petition filed December 14, 1959, which was heard but not acted upon by the former Board on January 6, 1960.

The present government of the City of Concord is founded on Chapter 429 of the Laws of 1957, and known as the Mayor-Aldermen plan Charter. This charter provides that 'the inhabitants * * * shall continue to be a body politic and corporate * * * and as such to enjoy all the rights, immunities, powers and privileges and be subject to all the duties and liabilities now appertaining to or incumbent upon them as a municipal corporation.' Laws 1957, 429:1. RSA 44:2 provides that 'All provisions of statutes, now made or hereafter enacted relating to towns, shall be understood to apply to cities; and all provisions relating to the selectmen and town clerks of towns shall be construed to apply to the mayor and aldermen and clerks of cities, respectively, unless a different intention appears.'

The governing body of the City consists of 'a principal officer called the mayor and a board of fifteen aldermen. The mayor shall be elected from the city at large for a term of two years. At each election three aldermen shall be elected from the city at large for terms of four years and one shall be elected from each ward for a term of two years * * *.' Laws 1957, 429:8. '* * * The mayor-elect and the newly elected members of the board of aldermen shall assume office at the regular January meeting in each even numbered year.' Laws 1957, 429:12. The charter further provides that the Board of Aldermen 'shall have all the powers and discharge all the duties conferred or imposed upon city councils in convention, city councils voting concurrently, or boards of mayor and aldermen acting separately, by chapters 44 to 48 inclusive, of the RSA or other general law now in force or hereinafter enacted, or upon the existing city councils of board of mayor and aldermen of the city of Concord by special laws not hereby repealed. The board of aldermen shall have the powers of selectmen of towns so far as consistent with this charter. All provisions of such laws pertaining to the powers or duties of any or all such bodies shall be construed to apply to the board of aldermen hereby established unless a contrary intent or provision herein appears, it being the purpose of this act to confer upon said board all functions of either or both branches of the existing board of aldermen, whether legislative, executive or judicial.' Laws 1957, 429:15.

Towns are authorized by RSA 31:4, subd. III 'to lay out * * * public parking areas.' RSA 31:92 provides that for such purposes 'land may be taken, the damages assessed, and the same remedies and proceedings had as in case of laying out highways by selectmen.' Selectmen are empowered to lay out or alter highways by RSA ch. 234, of which section 13 provides 'they shall make a return of the highway or any alteration by them laid out, describing the same and the width thereof, and their assessment of the damages sustained by each owner of land or other property taken, and cause the same to be recorded by the town clerk.'

The rule that the board of aldermen is a continuing body regardless of changes in its personnel and that proceedings duly begun before one board may be completed by its successor, is firmly established. Taintor v. Mayor of Cambridge, 192 Mass. 522, 78 N.E. 545; Zeo v. City Council of Springfield, 241 Mass. 340, 345, 135 N.E. 458; 62 C.J.S. Municipal Corporations § 386, pp. 729, 730; 37 Am.Jur., Municipal Corporations, s. 50. We believe we need not labor the...