Brown v. Reding

Powers of county conventions and of their committees. Powers of county commissioners. Neither under the Revised or General Statutes had a county convention authority, by a committee or otherwise, to act with the county commissioners in the purchase of furniture and other personal property for the use of the county poor farm; but that authority is conferred upon the county commissioners alone. Where a committee of such county convention claim a right to act with the county commissioners in the purchase of furniture and articles for such county farm, but no serious public injury is disclosed, a court of equity will not interfere by injunction, but leave the parties to a remedy by quo warranto.

In Equity. This is a bill brought by the county commissioners of the county of Rockingham against the defendants, a committee of the county convention, to restrain them from interfering in the purchase of furniture and other articles for the county poor farm. The answer alleges, that under a resolution of the county convention the defendants have claimed 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 such purchases alone, or without the concurrence of the plaintiffs. The cause was heard upon the bill and answer. This bill is brought by James O. Brown and two others as county commissioners and tax payers, for an injunction to restrain tbe defendants, John R. Reding and others, who were appointed a building committee by the county convention, for the purposes set forth in the resolution recited in the bill; and the object of the bill is to restrain the defendants from purchasing stock, tools, or vehicles for the county farm, or furniture for the county house upon the farm, with the funds or upon the credit óf the county, either directly or indirectly; and from participating with the commissioners or interfering with the commissioners in such purchases, upon the ground that the county convention has no power or authority to appoint officers or agents for such a purpose ; and that the duty of making such purchases belongs to the commissioners, subject to such limitations, if any, as the convention do, and have a right by law to, impose. It is in proof that the committee claim the right, jointly with the commissioners, to make such purchases, through a committee chosen by the vote of the two boards; an equal number of the committee being chosen from each board. The building committee being in the majority, would of course have the control in the choice of the sub-committee; and the sub-committee, consisting of equal numbers from each board, could do nothing without the assent of the members of the building committee ; so that, in fact, the whole power, under the resolution of the convention, and by the determination of the building committee, for the purchase of the property in question, is lodged with the building committee ; and the questions are: 1. Has the county convention authority to choose or appoint such a committee as this building committee, and to clothe them with the authority that it has undertaken by the resolution to do in this case, relative to the matter in question ? It is obvious that whatever power the county convention has is derived from the legislature, as expressed in the statutes. The first authority given to the representatives of a county to form themselves into a convention is found in the Statute, of 1794, Laws of 1805, p. 68, abolishing the court of general sessions, and authorizing and empowering the representatives of the county assembled at the general court to form themselves into a county convention, for the sole purpose of granting and appropriating taxes for their county. This power and authority were continued in the county conventions without material change until 1863. See Statutes of June 12,1801, Laws of 1805, p. 70; Act of 1827, Laws of 1830, p. 173 ; Revised Statutes, p. 80, ch. 23, § 2; Compiled Laws of 1850, p. 84, § 2. The Revised Statutes, ch. 67, § 2, also provide that the court of common pleas, upon a recommendation of a majority of the representatives to the legislature from the several towns in the county, may provide, at the expense of such county, all such lands, buildings, and articles as may be necessary for the accommodation of the county poor. This was not an authority given to them as a convention ; they need not meet together to exercise it. It was not even a check upon the court; but the authority given to the court was a new and enlarged one, growing out of the new methods of supporting the poor; and the court were bound to exércise it whenever a majority of the representatives recommended it. The act of 1863, entitled “ an act to limit and define the powers of county commissioners in certain cases,” chap. 2,785, secs. 1 and 3, is a mere check upon the county commissioners, and gives the convention no power to act in the matters therein specified, except through the commissioners. The General Statutes, chap. 22, sec. 2, vests in the county convention, exclusively, the power of raising county taxes, and authorizes the purchasing and selling real estate for the county, erecting all public buildings for the county, exceeding the expense of one thousand dollars. Neither this nor any other statute, past or existing, ever has conferred or does confer upon the convention the power of choosing or appointing any officers or agents to do any business whatever on behalf of the county ; but all the authority conferred upon the county convention, except that of raising taxes, is intended to be, and is a mere check upon the county commissioners — tfie convention having the power to authorize certain acts, leaving the acts to be done through and by the constituted authorities chosen by the people for that purpose. If any confirmation of this view, in the absence of all statute provisions to the contrary, were necessary, it may be found in section 6 of chapter 22, General Statutes, which provides that a record of the doings of the convention shall be kept, and transmitted to the clerk of the county commissioners, who shall record the same at length in the book of records of the county provided for that purpose. This is plainly in the nature of a warrant for the commissioners to act upon matters concerning which they have no right to act without the authority of the convention. I submit, therefore, that the county convention had no authority to appoint or choose this building committee, the county commissioners being the only authorized agents of the county to do the acts contemplated in the resolution; and that said committee have no authority in the premises, and that, therefore, their acts in relation to the same are utterly void; and that they have no authority to make or in any way participate in the contemplated purchases. II. What is the authority of the county commissioners in the premises ? It may be assumed at the outset that it is immaterial, in one view of this case, whether the county commissioners have any authority in the premises or not, the question being upon the right of the committee to make the contemplated purchases ; yet it is quite important that the commissioners should know what are their rights and authority upon the matters in question, since, the interests of the county require that the farm should be stocked at once. By Revised Statutes, chap. 19, sec. 2, it was provided that the court of common pleas for each county should have the custody of all property belonging to the county, and see that the same is kept in good condition, and, when expedient, might authorize the county treasurer to sell and convey any part thereof for the use of the county. And by chapter 67, section 7, Revised Statutes, before cited, upon recommendation of a majority of the representatives, &c.,. might provide, at the expense of the county, all lands, buildings, and articles necessary for accommodation, support, and employment of the county poor. These provisions were in force at the time of the act for remodelling the judiciary in 1855; and by that apt, — -Laws, chap. 1,659, section 37, — the county commissioners were clothed with the same authority, in relation to the financial affairs, and management and control of the property of the county, and the disposal and support of county paupers, that the court of common pleas then had. The increased necessities of the counties for better facilities for the care and management of their poor, arising out of new methods adopted for supporting and maintaining them, were met by the commissioners, as the financial agents of the several counties, by purchasing such real estate as was necessary for such purposes, although no statute seems to have expressly clothed them with so extensive powers. At length, in 1863, the act limiting and defining the powers of county commissioners in certain cases was passed — Laws, ch. 2,735, sections 1 and 3 — prohibiting them from selling real estate of the county, and from investing in real estate for the county, to an amount exceeding $1,000, without the consent of the convention. Thus the law stood at the time of the passage of the General Statutes; and by section 3, chapter 24, of said statutes, the colínty commissioners are prohibited from purchasing real estate for the county, and from selling the real estate of the county without the authority of the convention; and by the same section they are also prohibited, without such authority, from expending in any one year more than $1,000 in the erection, enlargement, and repairs of county buildings. By section 4 of same chapter, they may, by the authority of the convention, do certain acts; but these acts all relate to houses of correction, and are not material to be considered here. Section 2 provides 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, 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. . The authority of the commissioners is, therefore, unlimited in relation to the matters embraced in that section, except in so far as they are subject to the control of the convention in cases provided by law. In cases not provided by law, the convention has no power over them. What are the cases provided by law embraced in that section, concerning which the commissioners are subject to the convention ? So far as mentioned here, that section relates only to the purchase and sale of personal property. The control of all the property of the county is committed to the commissioners. As to the real property, it is expressly provided by law that the commissioners shall be subject to the control of the convention in the purchase and sale thereof; and so of the personal property for the accommodation of the prisons and work-houses, if they are to be deemed houses of correction; but as to personal property for the accommodation of the poor farm of the county, it is not provided by law that the commissioners shall be subject to the convention, and it could not have been the intention of the legislature that, as to such matters, they should be subject to the convention; for, by the 5th section of the same chapter, it is provided that “ the county commissioners shall have the charge, disposal, and support of all county paupers, and shall provide for their maintenance in the poor-houses, or houses of correction, or upon the poor farms provided by the county, &c.; — and may appoint such overseers or agents, and employ such assistants and laborers, as they may find necessary for the transaction of the business.” Therefore, if the county have a poor farm, the commissioners have charge of it, are bound to maintain the county poor upon it, and are authorized to carry it on; and the poor could not be accommodated there without furniture for the house, the inmates could not be employed upon the farm, and the farm could not be carried on without the necessary stock, tools, and vehicles. The legislature have not limited them in the purchase and sale of such property, have not subjected them by any provisions of law, in this regard, to the control of the convention, have provided no other agents for the purchase or sale of property, and such authority is absolutely indispensable to the commissioners, in order that they may discharge the duties that the statute expressly imposes upon them; and the convention have, by law, no authority to appoint any financial or other agents for the county. Hence, I submit, the farm being provided, the authority of the commissioners to stock and furnish it is absolute and unlimited, and the convention have no power to interfere, and any contracts made by said committee would not be binding upon the county >; and no tax could be legally voted, assessed, or collected, to meet such contracts. The ■ committee refuse to allow any such stock or furniture to be bought, unless they participate in the purchase through a sub-committee to be chosen from the two boards. The committee are in the majority, and will control. The commissioners, believing the committee have no authority in the premises, refuse to act with any of its members. Therefore, if any property is bought it will be by the committee. And I submit, that if the property should be bought by the two boards, the contracts would not be binding upon the county. The question then is: III. Will, or can, the court interfere by injunction against said committee ? It may be objected that an injunction will hot lie to try the title to an office. That is not the question here. That question can only arise when two or more persons claim the same office. In this case the committee are not officers. They do not hold or exercise any office known to the law. At the most they are the mere agents of the convention; and the commissioners not only do not seek their place, but deny that they have any legal place or existence, or that there is any such office. In the first place, I submit, this court has jurisdiction to interfere, by way of injunction, to restrain public functionaries who are exercising special public trusts or functions, in cases where they depart from the power which the law vested in them, and assume power over property which the law does not give them. Story on Equity, § 955 a. And is not the mischief equally as great where the defendant, assuming to be a public functionary, and acting under the color of a public office, seeks to pledge the public credit, or to dispose of the public funds, in cases where he has no authority, although, in law, he is not an officer, and has no authority at all. The first mischief here is the pledging of the public credit, without right, under color of a public office. Cannot that be restrained by injunction? In the next place, there is a direct attempt to interfere with public officers in the discharge of their public duties, by the defendants claiming a right to do so when no such right exists. Will not equity restrain them ? Again, these defendants propose to interfere directly with: the stocking and furnishing the farm, so that the county cannot have the benefit of their property, and the commissioners cannot take care of the poor in the manner required by law, nor without great additional expense, for which there can be no adequate remedy at law. Will not the court interfere by way of injunction, in furtherance of justice, to protect the county in the enjoyment of their property, and the commissioners in the due discharge of the duties of their office ? Boston Water Power Oo. v. Railroad, 16 Pick. 525. Equity will enjoin a town against expending its money or pledging its credit for purposes for which they have no legal right to do so ; and will also restrain a town officer from expending the town money and pledging its credit for any purpose not authorized by law — Task v. Adams, 10 Cushing 252 — and will grant an injunction against town officers, to prevent the payment of money illegally assessed. Merrill V. Plainfield, 45 N. H. 126. Will the court not also interfere to prevent a person acting under color of office, but without right, from pledging the credit of the county or expending the county’s money for purposes for which he has no right to pledge or expend it ? The mischief is the same in both cases. In short, I submit, the mischief here apprehended is irreparable, and there is no adequate remedy at law, and that an injunction ought to issue. I. There is no pretence that the defendants have threatened or intend to act except in conjunction with the county commissioners, and exactly as authorized by the votes of the county convention. But inasmuch as no action is proposed to which plaintiffs do not assent, no injunction can be granted on their motion. II. If the vote of the convention were in law unauthorized, or if the defendants did propose to act without the commissioners, and without authority of the convention or of the law, this bill would not lie, and there is no occasion for interference by injunction. The defendants have no money or other property of the county within • their control ; and they cannot use its credit unless they are lawfully authorized to do so by the vote of the convention. They stand in no worse position than would any other volunteers who may supply the county farm with stock or furniture, in the hope or expectation that the county will pay for the same. Their action can occasion injury to no one but themselves. The remedy of the county will be perfect át law. Its officers, the plaintiffs themselves, have only to refuse payment for the articles that may be purchased. A single and simple suit at law will settle the right. If the defendants choose (as public officers or private agents often have occasion to do) to supply a pressing necessity of the county, without authority, taking the hazard that their acts will hereafter be ratified, how can the court interfere ? Certainly not on the common ground of irreparable injury. We apprehend that this application is wholly without precedent, and contrary to every principle upon which courts interfere with the actions of men by injunction. The New York authorities on this subject are collected in 8 Abbott’s Digest, Injunction. See sections 1 to 12,48 and 44, 60, 62, 78, 102 to 108, 118, 259 to 263, and especially sections 19, 263. Eastman v. Amosheag M. Go., 47 N. H. 78, and cases cited. The extent to which the courts have gone has been to enjoin the assessment of unlawful taxes, or the unlawful expenditure of public money; but there the mischief threatened was in its nature irreparable, for- it might be impossible to recover taxes once paid, or money once expended. III. The defendants are in law fully authorized not only to act in conjunction with the commissioners as indicated in the resolutions of the convention, but to act without the commissioners if they refuse to do their duty. This authority is derived from the General Statutes, ch. 22 and ch. 24. ■ The history of the legislation on this subject is this: Originally the power to “ make orders for the raising ” of money for public buildings and all other county charges was vested in the court of general sessions of the peace. Provincial Laws, ed. 1771, p. 207 ; Act Feb. 9, 1791, Laws, ed. 1797, p. 55 ; Act Feb. 15,1791, do. p. 346; Act June 8,1791, do. p. 176 ; Act Feb. 10,1791, do. p. 139. The court of general sessions was abolished Feb. 21,1794, and it was made the duty of the court of common pleas to submit estimates annually to the county convention, which assembled for the “ sole purpose of granting and appropriating taxes for the county,” and the courts of common pleas were to expend the money “ agreeable to the appropriations.” Laws, ed. 1791, p. 66; Act June 12, 1801, Laws, ed. 1805, p. 70, ed. 1815, p. 87 ; Act July 5,1827, Laws, ed. 1830, p. 473. The act of Dec. 16, 1828, conferred on the court of common pleas power to provide at the expense of the county “ all lands and buildings ” for the support of the poor, &c. But it was silent as to furniture, &c. Laws, ed. 1830, p. 302. The Revised Statutes of 1842 give the convention power to grant and appropriate taxes, &c., ch. 23. To the court of common pleas it gave the custody of all property of the county, ch. 19, and authorized them to provide lands, buildings, and articles necessary for the support of the poor, on recommendation of a majority of the representatives of the county, ch. 67. The board of county commissioners was created by the act of July 14, 1855, Laws, p. 1,551, and they were to have all the powers1 in relation to the financial affairs of the county, the management of its property, and the support of the paupers, which had been vested in the court of common pleas. By the act of July 9, 1863, all appropriations for the purchase and sale of real estate, erection, &c., of buildings, must be made by the convention; and the commissioners have no power to use the money or credit of the county for any such purpose to an amount exceeding $1,000. Laws, p. 2,715. The General Statutes are plainly intended to be a revision and alteration of the law before existing in relation to these matters, and that statute plainly enough gives to the convention all the power we claim. The whole power of the county commissioners over the property of the county and to purchase personal property for the county is “ subject to the control of the county convention, in cases provided by law.” Gen. Stat., ch. 24, sec. 2. Now the 4th section of the same statute “ provides ” that the commissioners may obtain for the county “ lands, buildings, and personal property,” “ when so authorized by the county convention.” The purchase of personal property, then, is one of the things the commissioners may do, “ subject to the control of the county convention,” “ and not otherwise” — sec. 2.' In this instance the convention have exercised their control, by authorizing the commissioners to act in conjunction with a committee of the convention. That committee stands in the place of the convention, and is its representative. The control of the committee is precisely the same as that of the whole body of the convention, if it could be personally present. It is the plain duty of the commissioners to act under that control. The statute is imperative, and the commissioners, if they refuse, may probably be compelled “ to provide” “ personal property necessary for the support, education, and employment of the poor” (sec. 4), in conjunction with and under the control of the committee. The commissioners certainly cannot act except under this control; and the statute does not intend that they shall control the convention by any refusal to act. If they do refuse to act, what follows ? that the work ceases, and the provision for the support of the poor cannot be made ? The support .of the poor by the county, the provision of suitable accommodations for the courts, offices, prisons, &c., are imperatively imposed upon the county, and are of immediate necessity. The convention may raise taxes and issue bonds for these purposes. How, if the commissioners are extinct, incapable, or refuse to act ? Must the business of the county cease, the courts adjourn, the prisoners go at large, and the poor perish, because nobody but the commissioners can lawfully be authorized to make the necessary purchases ? Such is the reasoning of the plaintiffs. But we say that the authority to control, vested in the convention, implies the authority to act, if the commissioners will not; and the action of the convention, by its own agents or committee, in such a case, would be necessary and lawful. The fact that the legislature has vested in the convention powers to raise taxes, authorize the purchase, &c., of real estate, and the issue of bonds (ch. 22, sec. 2), and to authorize and control the “ care,” “management,” “ purchase,” and “ sale of personal property” (ch. 24, sec. 2), “ the purchase” and “ sale” of real estate, and “ erection” &c., of buildings (ch. 24, sec. 3), and the provision, at the expense of the county, of real and “ personal property” for houses of correction, for the “ accommodation, support, education, and employment of the poor,” &c., and the appointment of “ suitable officers for the management thereof,” &c., &c. (ch. 24, sec. 4), necessarily indicates that the convention has full capacity to execute these powers. The commissioners are named as convenient instruments in their hands. If they will not or cannot work', common sense teaches, and the public necessities require, that the convention still shall exercise their powers by such agents as the nature of the case may demand. If any injunction in the present case is required, it is that the commissioners do their duty in the manner indicated by the convention, and subject to the control by it imposed. And they are not entitled to be heard here, alleging their own wrongful neglect of duty as a reason for compelling the inactivity of the convention and its committee. The power of the county conventions to act by committees has been often exercised, as twice in Rockingham county in building jails, &c.