State v. Wimpfheimer

• Decision Date: 30 July 1897
• Citation: 38 A. 786,69 N.H. 166
• Parties: STATE v. WIMPFHEIMER et al.
• Court: New Hampshire Supreme Court

38 A. 786

69 N.H. 166

STATE

v. WIMPFHEIMER et al.

Supreme Court of New Hampshire. Strafford.

July 30, 1897.

Quo warranto by the state against Wimpfheimer and others, who were in possession of the office of water commissioners of the city of Somersworth. Information dismissed.

H. V. Moore, J. S. H. Frink, J. E. Edgerly, and J. Kivel, for the State.

Streeter, Walker & Hollis, J. E. Young, and W. S. Pierce, for defendants.

CHASE, J. By chapter 143, Laws 1891, the town of Somersworth was authorized "to construct, manage, maintain, and own suitable waterworks," for the purpose of supplying the inhabitants of the village of Great Falls with water. It was required to place the works under the control of a board of water commissioners, consisting of three suitable persons, not more than two of whom should belong to the same political party. The selectmen of the town were authorized to appoint the board, and it was to have such powers and duties as were prescribed by the town from time to time. The town was made a city in 1893, and all the powers conferred upon the town by the act of 1891 were transferred to the city. Laws 1893, c. 171, §§ 1, 25; Pub. St c. 46, § 1. The city-councils were authorized to elect a city clerk, board of assessors, city treasurer, chief engineer of the fire department, and assistants, street commissioner, city solicitor, city physician, and "all other officers necessary for the good government of the city who are not chosen in ward meetings, appointed by the mayor and aldermen, or otherwise appointed by law." Laws 1893, c. 171, §§ 17, 18. In 1895, a substitute for section 18 was enacted, providing that "the city councils shall * * * elect a city treasurer, chief engineer and assistant engineers of the fire department, a street commissioner, a city solicitor, a city physician, tax collector, city marshal, assistant marshal, such police officers and other officers as may be provided for by ordinance, and elect all other officers necessary for the good government of the city who are not chosen in the ward meetings or otherwise appointed by law." Laws 1895, c. 179, § 4. Here, in addition to the officers mentioned in the original section, the tax collector, city marshal, assistant marshal, police officers, and other officers provided for by city ordinances are particularly named. As the law previously stood, these officers were appointed by the mayor and al dermen. Pub. St. c. 48, § 15. The water commissioners were also appointed by the same body by virtue of the law making all provisions of the statute relating to the selectmen of towns applicable to the mayor and aldermen of cities, "unless it is otherwise provided by law." Id. § 14. The words, "appointed by the mayor and aldermen," were omitted from the exception, leaving as the only officers excluded from the operation of the section those "chosen in ward meetings," such as the supervisors of the check list (Laws 1893, c. 171, § 4), the moderators, ward clerks, aldermen, common councilmen, and selectmen (Id. §§ 10, 12); and those "otherwise appointed by law," such as the clerk of the police court (Laws 1895, c. 179, § 4), the president and clerk of the common council (Pub. St. c. 48, §§ 8, 9), the president and clerk of the board of supervisors (Laws 1893, c. 171, § 4), and the clerk of the board of assessors. Weeks v. Dennett, 62 N. H. 2. In other words, the substituted section made it the duty of the city councils to elect all offleers who had previously been appointed by the mayor and aldermen. If such was not the intention, the words dropped from the former section should have been retained in order to fully and clearly express the meaning. They qualified the general terms that followed the particular enumeration of officers, and were as necessary in the new section as they were in the old one, if it was intended to continue the qualification. Their omission tends to prove an intent to include in the general terms all officers previously appointed by the mayor and aldermen not specially named.

It has been suggested that the general terms refer to officers of the same class or general character as those previously enumerated, and therefore that they do not include water commissioners. The conclusion does not follow from the premises. Among the officers particularly named are the city solicitor and city physician, who are not public officers in the sense that the law assigns specific duties for them to perform. Their functions more closely resemble those of a servant. The city employs the solicitor to do its law business, and the physician to attend sick persons for whose welfare it is responsible. In a similar sense the water commissioners are the servants of the city in the business enterprise of supplying water to its inhabitants. They have the control of the waterworks under the direction of the city. There is no such incongruity between the nature of their office and that of other officers specially named as to render it improbable that they were referred to by the general terms. The only apparent reason why the duty of appointing water commissioners was originally imposed upon the selectmen (Somersworth then being a town) was because it was thought that three persons would be likely to act with more deliberation and better discretion in the selection of the officers than the voters could exercise in the midst of the hurry and political excitement attendant upon a townmeeting. This reason ceased when the town became a city. All the powers previously possessed by the town and its inhabitants were then delegated to, and vested in, the city councils, composed of the board of mayor and aldermen and the board of common council. Pub. St. c. 48, §§ 6, 7; Id. c. 50, § 1. The city councils, when assembled in convention, consists of the mayor and 1 alderman and 3 councilmen from each of the 5 wards, or of 21 persons in all (Laws 1893, c. 171, §§ 2, 12),—not so large a number as to seriously impair the capacity of the body for deliberation and the reasonable exercise of discretion. It is also a representative body, in which the voters of each ward have substantially the same ratio of representation that they have in the board of mayor and aldermen, and a larger ratio than the voters of the town had in the board of selectmen. A...