Lucier v. Manchester , 80 N.H. 361 ( 1922 )

"All the powers vested by law in towns, or in the inhabitants thereof, shall be exercised by the city councils. . . ." P. S.[,] c. 50, s. 1.

"The common council of the city of Manchester is hereby abolished and all the powers now by law vested in said common council are hereby vested in the board of mayor and aldermen of said city, to be exercised by said board of mayor and aldermen in addition to all the existing powers of said board." Laws 1915, c. 249, s. 1.

By virtue of these statutes, all the powers vested by law in towns are exercised by the mayor and aldermen. Kelley v. Kennard, 60 N.H. 1; Hall v. Concord, 71 N.H. 367; Clough v. Verrette, 79 N.H. 356. The acts of the board are the acts of the city. So far as the transactions here involved are concerned, the board "is the city." Baker v. Nashua, 77 N.H. 347, 349.

A municipal corporation may be concluded by an estoppel in pais like a natural person. Amazeen v. Newcastle, 76 N.H. 250; Gilbert v. Manchester,55 N.H. 298. It is bound by a waiver of its rights. New London v. Davis, 74 N.H. 56. It may ratify and adopt an unauthorized contract, thereby making it valid from the beginning. Hett v. Portsmouth, 73 N.H. 334. And its acceptance of services performed creates a liability to pay therefor, regardless of the validity of the formal contract of hire. Skinner v. Manchester, 72 N.H. 299.

Applying these principles to the case in hand, the result is at once apparent. The board of aldermen were fully informed as to the facts. They were told that the plaintiff was acting as counsel for the city. They not only made no objection, but they continued to accept his services in proceedings before them, and later, from time to time, recognized his status as the attorney for the city. They never in any way questioned the rightfulness of his employment, or suggested that the city was not liable for the services it continued to take the benefit of. Upon these facts, but one conclusion can be reached. "So long as the city continues to accept the plaintiff's services tendered by him under the contract, they will be legally bound to pay for them." Skinner v. Manchester, supra, 300.

The action of the finance commission, appointed under Laws 1921, c. 226, whereby it interposed a veto upon the vote of the mayor and aldermen that the plaintiff's bill be paid, is not here involved. No opinion is expressed upon the efficacy of such action in a case where the act of 1921 applies. The plaintiff is not proceeding upon the vote to pay for his services, but upon a contract both made and performed upon his part before the finance commission was created. That the commission has no power to determine the validity of such a contract is conceded. If the commission can veto an appropriation or a vote to pay a preexisting debt of the city, it cannot prevent the creditor from proceeding to collect his claim by the usual processes of law

Judgment for the plaintiff.

All concurred.