Town of Exeter v. Kenick

• Decision Date: 05 June 1962
• Citation: 104 N.H. 168,181 A.2d 638
• Parties: TOWN OF EXETER v. Joseph L. KENICK, Jr., et al.
• Court: New Hampshire Supreme Court

Page 638

181 A.2d 638

104 N.H. 168

TOWN OF EXETER v. Joseph L. KENICK, Jr., et al.

Supreme Court of New Hampshire.

Argued April 3, 1962.

Decided June 5, 1962.

George R. Scammon, Exeter, for the town of Exeter, furnished no brief.

Halford F. Meras, Joseph L. Kenick, Jr. and Robert Shaw, Exeter, pro se.

BLANDIN, Justice.

The main issue before us is whether procedural rules which were passed at annual town meetings to regulate the method of voting on certain appropriations at subsequent town meetings are binding on such meetings.

At the annual town meeting in Exeter on March 12, 1935, an affirmative vote was cast on the following article: 'To see if the town will vote to have all articles other than those legally, or otherwise, regular and necessary placed on an Australian ballot, if they involve, or are likely to involve, the sum of seven hundred fifty dollars or more. This to be done with such articles for the annual town meeting of 1936 and each year thereafter.'

This vote was later affirmed at the annual meeting on March 14, 1944, which adopted an article reading as follows: 'to see if the town will vote that the ordinance passed in 1935, providing that 'All articles other than those legally or otherwise regular and necessary shall be placed on the Australian ballot, if the amount involves or may involve the sum of seven hundred fifty dollars or more. This to be done with such articles for the annual town meeting of 1936 and each year thereafter,' is intended to apply to such appropriations whether at annual meetings or special meetings and that such articles shall be on the Australian Ballot in the future for both annual and special town meetings.'

The method prescribed above was adhered to until the annual meeting of March 14, 1961, when certain articles calling for an expenditure of more than $750 and dealing with such matters as increases in town officers' salaries, repairs to the town hall and other buildings, storm sewer equipment, and raises for the police department, were not placed on the Australian ballot. However, the moderator permitted them to be passed upon by the meeting without use of the ballot. The validity of the affirmative vote was disputed by certain legal voters of the town, but the Legislature by Laws 1961, c. 353, legalized the proceedings.

It is a long established principle under our law that towns are but subdivisions of the State and have only the powers the State grants to them. Eaton v. Bragg, 96 N.H. 407, 77 A.2d 589; Opinion of the Justices, 101 N.H. 544, 134 A.2d 281. Any part or all of the local duties or obligations of the town may be assumed by the State through legislative action (Opinion of the Justices, 95 N.H. 544, 64 A.2d 325), and from ancient times the Legislature has frequently been called upon to legalize town meeting votes when questions as to their validity have arisen. It was proper for it to do so here.

The remaining questions now before us are within the jurisdiction of this court and have been so considered from early times up to the present. Brackett v. Whidden, 3 N.H. 17 (1823); Sugar Hill Improvement Ass'n v. Lisbon, 104 N.H. 40, 178 A.2d 512 (1962).

Towns are specifically permitted by statute to use the ballot system 'for the election of town officers who are not chosen at the biennial election.' RSA 59:71-59:73. Authorization to use the ballot system in voting on other matters is not delegated to towns for the purpose of binding future meetings. It should be noted however that where appropriations are made at special town meetings the statute requires that the vote be by ballot. RSA 31:5.

The State, in giving extensive powers to town moderators, has provided as follows: 'The moderator shall preside in the town-meeting, regulate the business thereof, decide questions of order, and make a public declaration of every vote passed, and may prescribe rules of proceeding; but such rules may be altered by the town.' RSA 40:4. This provision has remained substantially unchanged since 1842. R.S. [1842] 33:3. It is clear under this legislative grant that the moderator has 'large discretion in providing rules for the government of his meeting, subject only to revision by the town.' Hill v. Goodwin, 56 N.H. 441, 447; see to the same effect Lamb v. Danville...