Brown v. Reding

50 N.H. 336

• Court: Supreme Court of New Hampshire
• Decided: December 15, 1870
• Status: Published

Opinion

Bellows, C. J.

The question is, whether the county convention has power to appoint a committee with authority to act in conjunction with the county commissioners in the purchase of furniture and other personal property for the use of the county farm. If the county convention has power to appoint such committee to act with the county commissioners as a joint board, it can, of course, by appointing on this committee a number greater than the board of commissioners, take from those commissioners the control of those purchases.

By the General Statutes, chap. 24, § 2, it is provided that the county commissioners shall have the care, management, and control of all the property of the county, and may purchase such personal property for the accommodation of the courts, offices, prisons, work-houses, and poor farms of the county, and the same sell and dispose of, as they may think expedient, subject to the control of the county convention in cases provided by law.

In what cases, then, is it provided by law that the county convention shall have control? By ch. 22, sec. 2, there is vested in the county convention the power to raise county taxes, to authorize the purchase of real estate for the use of the county, and the sale and conveyance of its real estate, the erection, enlargement, or repair of buildings for the use of the county, exceeding the expense of one thousand dollars, and to authorize the issuing of bonds for the debts of the county. Section 6 of this act provides for a record of the doings of the county convention, and that it shall be transmitted by its clerk to the clerk of the county commissioners, to be by him recorded, and a copy of every vote for raising a county tax, to the county treasurer.

Section 8 of ch. 24, relating to county commissioners, provides that the commissioners, when authorized by vote of the county convention, may purchase real estate for the use of the county, and may. sell and convey any real estate belonging to the county; and they shall not expend in the erection, enlargement,' or repair of buildings, more than one thousand dollars in any year without such authority.

By section 2 it will be observed that the authority to purchase personal property for the accommodation of the county poor farms is conferred upon the county commissioners as they may think expedient, subject to any control that may be given by law to the county convention. The cases where this control is provided are in the purchase and sale of real estate, and in the erection, enlargement, or repair of buildings costing more than one thousand dollars in any one year; and by section 4 of the same chapter, the authority of the county convention is necessary to enable the commissioners to provide and furnish a house of correction.

These limitations on the authority of the commissioners are in the same chapter which confers the authority, and it is very .clear that no control over the purchase of personal property for the use of the county farm is given to the convention unless it can be found in the limitation of expenditures for the repairs of buildings. In terms this clearly does not include the purchase of furniture, stock, and the like, for a poor farm, and we see no reason for giving it such an enlarged construction as to embrace them.

Corresponding to the limitations in this chapter are the powers conferred upon the county conventions in chapter 22; that is, besides raising county taxes, to authorize the purchase of real estate for the use of the county, and the sale and conveyance of its real estate, and the erection, enlargement, or repair of buildings for the county exceeding the expense of one thousand dollars.

Nor is there anything in the previous legislation on the subject that suggests a construction that would authorize the county convention to control the purchase of furniture, stock, and other personal property for the use of the poor farm.

By the Provincial Law of 1791, the court of general sessions was authorized to make orders for the raising of money for building or repairing court-houses, prisons, houses of correction, or other public buildings, and for the payment of all other county charges, giving that court the care of building prisons, and inspecting and repairing all prisons, court-houses, and other necessary public edifices.

By Law of June 10,1791, the court of sessions was to have the care' of building and repairing such buildings; and by Law of February 15, 1791, that court was authorized, if it thought best, to build or otherwise provide'houses of correction, make rules and regulations, and. appoint officers to manage the same. By Law of February 21,1794, ed. 1805, p. 68, the courts of general sessions of the Peace were abolished, and the jurisdiction transferred to the court of common pleas.

By Law of June 12,1801, ed. 1805, p. 71, provision is made for county conventions during the sessions of the general court, and requiring the judges of the court of common pleas to determine what moneys are in their opinion necessary to be raised in the respective counties for the year; a statement of which, with the general purposes for which they are needed, was to be laid before the representatives of the county in June, who were authorized to form themselves into a convention for the sole purpose of granting and appropriating taxes for the county, to be assessed by the county treasurers as they were heretofore, when granted by the court of sessions, and directing the judges of the court of common pleas to make orders on the treasurers for paying out such moneys, agreeably to the appropriations made by such conventions.

These provisions were substantially re-enacted July 5, 1827, ed. 1830, p. 473; and by Law of December 16, 1828, ed. 1830, p. 302, the court of common pleas was empowered, if it saw fit, to provide, at the expense of the county, all such lands and buildings as might be necessary for the accommodation, support, and employment of the poor chargeable to such county, and for a house of correction ; to appoint proper officers for the management thereof, and to make needful rules and regulations for the same.

By the Revised Statutes, ch. 19, sec. 2, the court of common pleas has the custody of all property belonging to the county, and is to see that it is kept in good condition, and when expedient may authorize the county treasurer to sell and convey any part thereof. , By chap. 67 of those Statutes, sec. 2, the said court, upon a recommendation of a majority of the representatives from the several towns composing the county, may provide at the expense of the county all such lands, buildings, and articles as may be necessary for the accommodation, support, and employment of the poor, and may make needful rules and regulations, and appoint suitable officers to manage the same.

By Law of July 14, 1855, chap. 1,659, § 37, the power of the court of common pleas in relation to the financial affairs of the county, and the management and control of its property, and the disposal and support of county paupers, was transferred to the county commissioners.

So it remained until the Law of July 9, 1863, chap. 2,735, which provided that all the appropriations for the purchase of real estate, and for the enlargement, repairs, or erection of buildings, shall be made by the county conventions ; and the county commissioners shall have no power to use the money of the county or pledge its credit for the purchase of real estate, or to enlarge-, erect, or repair buildings to an amount exceeding one thousand dollars, without a vote of the county convention ; or have the power do sell any of its real estate without such vote. These provisions are substantially embodied in the General Statutes before quoted.

The result of this history of our legislation is this: That in 1801 provision was made for county conventions, by which money was to foe granted and appropriated for county purposes ; and this provision has ever since been retained.

From 1794, the court of common pleas had the care of building and repairing all prisons and other edifices for the county; and by law of 1828 this court was empowered to provide, at the expense of the county, all such lands and buildings as were necessary for the accommodation, support, and employment of the poor, and for a house of correction. By the Revised Statutes this court had the custody and care of the county property, and might authorize a sale of it by the treasurer, and, on the recommendation of a majority of the representatives of the county, might provide all such lands, buildings, and articles as might be necessary for the accommodation, support, and employment of the poor. And by law of 1855 this power was transferred to the county commissioners. Previous to the law of 1863, the county conventions were authorized to grant and appropriate taxes ; but by law of 1863 the terms were, that all appropriations for the purchase of real estate, and for the enlargement, repairs, and erection of buildings for the use of counties, shall be made by the county conventions; and by the General Statutes they are authorized to raise county taxes.

If, from the terms to raise and appropriate taxes, standing alone, it might be argued that the power to expend the money was to be implied, we think that argument is fully answered by the fact that the law at the same time has provided for the expenditure of this money by its financial agents,-r-the court of common pleas or the county commissioners.

So by the General Statutes the authority is simply to raise county taxes, and to authorize the purchase of real estate, and the erection, enlargement, and repairs of buildings when the expense exceeds |1,000; and this is clearly a limitation of the county commissioners’ authority, and, being silent as to the purchase of personal property, it may fairly be presumed that the limitation did not extend to that.

We are, then, of the opinion that the county convention had no power to appoint a committee to control the county commissioners in the purchase of furniture, stock, and other personal property for the poor farm,

It is apparent that from 1855 to 1863 the county commissioners alone had authority to purchase and repair and furnish the poor farms; and, although the recommendation of a majority of the representatives was necessary, it is obvious that the convention was not authorized to do this, but its duty was merely advisory.

The act of 1863 was more explicit, in requiring a vote of the county convention as a pre-requisite to the action of the county commissioners, and was in fact merely a more distinct limitation of the authority of the commissioners, but by no means a transfer of it to the county convention or a committee appointed by it; and we discover no intention in the legislature to transfer this agency from the commissioners to the convention or its committee, but merely to require the assent of the convention to matters of such magnitude as the purchase and sale of real estate, or the expenditure of more than one thousand dollars in any year in the erection, enlargement, or repairs of buildings, leaving matters of less importance to the discretion of the county commissioners, where very clearly it could be most conveniently and judiciously exercised. Especially would it be so in the purchase of furniture and other articles for the poor farm, as their needs might from time to time require.

The question is one of legislative intention, to be gathered from the various enactments; and we can see no purpose to make the county convention the agent of the county in the management of these affairs.

The question then is, whether the plaintiffs are entitled to an injunction to restrain the defendants from acting in the purchase of articles for the poor farm. The answer alleges that the defendants have claimed, in accordance with: the resolutions of the county convention, the authority to act in conjunction with the county commissioners in the purchase of stock, tools, and necessary articles for the county farm, but that they have never proposed or threatened to make said purchases alone or without the concurrence of the plaintiffs.

As the case is heard upon bill and answer, these allegations in the answer must be taken to be true; and the question then arises, whether there is anything in the bill not answered that shows such an: injury from this claim of the defendants as to justify the granting of an injunction. Where a party under color of public authority undertakes to do what he is not authorized to do, and his act will work an injury to another for which there would be no adequate remedy at law, equity will interfere by injunction. Freewin v. Lewis, 4 Mylne & Craig 254; 2 Story’s Eq. Jur., § 955 a.

In The Attorney-General v. The Utica Ins. (Jo., 2 Johnson Ch. 371, which was an information against defendants for exercising the business of banking without authority of law, with a motion by the attorney-general for an injunction to restrain the further exercise of that business, the court held that it had no jurisdiction in the cause, and denied the motion. It was much considered by the learned Chancellor, and the authorities cited and considered; and the court held that equity had no jurisdiction of an offence against a public statute, or matters of a criminal natui'e, unless they touch the enjoyment of property., See p. 378.

In Mohawk & Hudson Railroad Co. v. Artcher & al., 6 Paige Ch. 83, it was held that equity has jurisdiction to interpose by injunction where public officers are proceeding illegally and improperly under a claim of right, or where the exercise of such a jurisdiction is necessary to prevent a multiplicity of suits; and the court refused to dissolve an injunction restraining the exercise of a continued right of passing across and through the complainants’ fixtures, to the permanent and continued injury of their property. In this case the defendants were exercising a power not authorized by law, to the injury of private individuals ; and it was upon that ground that the court assumed jurisdiction.

Upon the same ground of injury to individuals, the court restrained by injunction the cutting down a bank and draining a small lake by which the plaintiff’s mills would be injured, holding that the law under color of which the defendants acted did not give them such authority. Belknap v. Belknap, 2 Johns. Ch. 463. So where the turnpike commissioners entered on plaintiff’s land to dig gravel in what was his garden, the court restrained the defendants by injunction, saying they would do it only in a very plain case, where it was free from doubt. Hughes v. Trustees of Morden College, 1 Ves. 188; and see other cases cited in Belknap v. Belknap, before cited.

So injunctions may be granted to restrain the paying out money by town officers illegally, or enforcing the collection of an illegal tax; but it is upon the application of a tax payer who would be injured by such acts. Brown v. Marsh, 21 N. H. 81; Merrill v. Plainfield, 45 N. H. 126.

In ordinary cases, where no injury to individuals is to be apprehended, equity will not interfere at the instance of a private person ; and for the mere excess of'authority by persons acting under color of law, equity will not take jurisdiction on the application of the attorney-general, unless there be cause to apprehend some irreparable public injury, such as injury to the public health or safety; but the proper remedy is at law, by a proceeding in the nature of h quo warranto. See Attorney-General v. The Utica Ins. Co., 2 Johns. Ch. 371, before cited.

In Hagner v. Heyberger, 7 Watts & Serg. 104, 2 Eq. Dig. 69, § 107, it was held that an injunction will not issue to restrain a person from discharging the duties of a school director, he claiming to hold that office; as the right to hold it must be tried by quo warranto.

In case irreparable public mischief was to be apprehended, the attorney-general would be the proper person to proceed, although we are not prepared to say that the application could not be made by the county commissioners, who might be regarded as representing the county, as in Hall v. Somersworth, 39 N. H. 511.

But the difficulty here is, that no such injury arising from the claim of the defendants is disclosed as would justify the interference of this court by injunction.

As it now appears before us, it is merely a question of authority; and that should be settled by a quo warranto.