Doolittle v. Walpole , 67 N.H. 554 ( 1893 )

"In its own courts a state cannot be made an involuntary defendant. It is not constitutionally bound to give to its school-teachers, to those who support its paupers, lend it money, sell it real or personal property, or make and repair its roads and buildings, to travellers injured by defects in its highways, or to any class of contractors, creditors, or claimants, a right of action, civil or criminal, against itself." Wooster v. Plymouth,62 N.H. 193, 205; Sargent v. Gilford, 66 N.H. 543, 544. Towns are "only political subdivisions of the state, made for the convenient administration of the government . . . . They are component parts of the state, and aggregately taken are the state." Id. 208. Constituting a portion of the sovereign power of the state, a municipal corporation is, therefore, not subject to an action, unless a right of action is conferred by statute in the exercise of the entire control over municipalities with which the legislature is invested by the constitution (id.); and there being no express statute authorizing the plaintiff's action, nor any from which authority can be implied, the defendant town is, for the purpose of the present inquiry, no less a sovereign than the state.

But aside from this fatal objection, the plaintiff alleges no duty on the part of the defendants towards him which was unfulfilled. The injuries of which he complains arose from the misfeasance and neglect of duty of independent public officers in the performance of their statutory duty as selectmen to "provide a suitable lock-up for the temporary detention of offenders" (P. S., c. 264, s. 23); and the uniformly recognized doctrine is, that the acts of such officers are their own official acts, and not the acts of the municipal corporation or its agents. Edgerly v. Concord,62 N.H. 8, 18, 19, and authorities cited; Wakefield v. Newport,62 N.H. 624, 625. And even if the statute imposed the duty to provide a suitable lock-up upon the town, the duty of being one for the benefit the public, and from the performance of which the town receives no corporate benefit or advantage, the plaintiff's action, in the absence of a statute giving it, could not be maintained. Authorities supra.

Exception overruled.

CARPENTER, J., did not sit: the others concurred.