Wilcox v. Burnham

• Citation: 94 A.2d 378,98 N.H. 64
• Parties: WILCOX et al. v. BURNHAM et al.
• Decision Date: 03 February 1953
• Court: Supreme Court of New Hampshire

Page 378

94 A.2d 378

98 N.H. 64

WILCOX et al. v. BURNHAM et al.

Supreme Court of New Hampshire.

Feb. 3, 1953.

John D. Wilcox, Bolic A. Degasis and Charles J. Flynn, Nashua, for the plaintiffs.

Louis M. Janelle, City Sol., Nashua, for the defendants.

DUNCAN, Justice.

The city of Nashua, like most other New Hampshire cities (Report of the Legislative Committee to Study the State Educational System (1946) 162, 163), and unlike most New Hampshire towns, Laws 1885, chapter 43; Wheeler v. Town of Alton, 68 N.H. 477, 38 A. 208, under its charter is itself a school district. Laws 1913, c. 427, Part 1, § 74. See Laws 1868, c. 6. It is expressly endowed with all the powers of a school district. Laws 1923, c. 227, § 2. 'Under the charter but a single corporation is created, viz., the city.' Toussaint v. Fogarty, 80 N.H. 286, 289, 116 A. 636, 638. The issue presented by the defendants' exception is therefore governed by charter provisions.

The administration of the fiscal and prudential affairs of the city 'except as herein otherwise provided,' are vested in the mayor, and board of aldermen. Laws 1913, c. 427, Part 1, § 4. All appropriations to be met form any source other than loans are to be recommended by the mayor who is required to submit the annual city budget to the board of aldermen. Id. § 56. The board may reduce or reject any item, but may not increase the budget in any way without the approval of the mayor. Id. To aid in the preparation of the budget, the board of education and other departments having the disbursement of appropriations are required to submit detailed estimates of appropriations needed for the year. Id.

Section 48 of the charter provides that, except as otherwise provided, the board of aldermen shall have all the powers and discharge all the duties conferred or imposed upon city councils, or boards of mayor and aldermen 'by chapters 46 to 50 inclusive of the Public Statutes', now chapters 62 to 66 inclusive, Revised Laws. Under this provision the board may be considered to have the power to provide for the 'appointment or election of all necessary officers * * * not otherwise provided for,' and to 'fix their compensation', R.L., c. 66, § 2; and to be required to 'take proper care that no money be paid from the city treasury unless previously granted and appropriated'. Id. § 7. The charter specifically provides that the finance committee shall not allow any department to overdraw its appropriation without authority by special action of the board of aldermen. § 53.

As against these general powers of the board of aldermen, the authority of the board of education and specifically its authority with reference to salaries is to be considered. Section 74 of the charter provides that the city shall continue to constitute one school district, and that 'the school committee of said city' shall be styled the board of education. It further provides: 'It shall perform all such duties as the school committee in towns is required by law to perform * * *.' At the time of enactment of the charter in 1913, school committees in towns, by that name, had become a thing of the past. By 1901 performance of the duties formerly entrusted to school committees in towns, G.L. c. 89, had been combined with other duties formerly belonging to prudential committees of school districts, G.L. c. 87, § 14, and entrusted to a single 'school board.' P.S. c. 92. Horne v. Chester School District, 75 N.H. 411, 75 A. 431. Cf. also, G.L. c. 87, § 19. These duties included the duty, formerly that of the prudential committee, to select and hire teachers for the district. G.L. c. 87, § 14; P.S. c. 92, § 2. Thus it may fairly be inferred to have been intended by the charter of 1913 that the board of education of the city of Nashua should have the duties of school boards including the duty of selecting and hiring teachers.

That it was intended that the board of education should have the power to fix the compensation of teachers is confirmed by other provisions of the charter. The provisions, upon which the plaintiffs place strong reliance, were originally and now are as follows: 'In all cases where salaries or wages for services are paid from the municipal treasury, the compensation shall be determined by the board of aldermen upon recommendation of the several departments, excepting those employed in connection with the schools.' Laws 1913, c. 427, Part 1, § 42. Laws 1941, c. 278. Thus, while not expressly so provided by the charter, the authority to fix the salaries and wages of those employed in connection with the schools has by implication been left with the board of education. The history of section 42 tends to support this implication. By amendment in 1937, the section was replaced by a new section providing in part as follows: 'In all cases where salaries or wages for services are paid from the municipal treasury, the compensation shall be determined by the heads of the several departments. In no instance however shall the salary requirements of the several departments exceed the yearly appropriation granted by the board of aldermen.' Laws 1937, c. 314. In 1941, the quoted provisions were stricken from the charter, and the original language of section 42 reinstated. Laws 1941, c. 278. The intention thus appears to be plainly indicated, to return...