McShane v. Dover , 80 N.H. 374 ( 1922 )

By the agreement of the parties, a narrow question only is presented. Had the police commissioners or the members of the police department authority to obtain the service sued for at the expense of the city? The only inference possible from the agreed facts as to the making of annual appropriations for the department and the use of the same for ordinary expenses is that the city represented the officials of the department as authorized, under such rules as might be established by the police commissioners, to pledge the credit of the city for the ordinary expenses of the department to the extent at least of the appropriations made for such purposes by the city councils. Laws 1903, c. 189, s. 7; Laws 1913, c. 148, s. 7; Pollard Auto Co. v. Nashua, ante, 233; Smith v. Bank, 72 N.H. 4,8; Hilliard v. Goold, 34 N.H. 230, 239. The substitution of gasoline for the horse as motive power for transportation had become such common practice that expenditure of the money appropriated for general purposes in the rent of the use of an automobile instead of a horse-drawn vehicle could not be considered so extraordinary as to call for a special appropriation for the purpose. The fact that the city councils did not consider it wise for the city to own and operate gasoline-driven vehicle was not notice of a want of authority in the police officers temporarily to hire such a machine at the city's expense. The cases heretofore before the court have no relation to the question the court is now asked to decide. In Foss v. Place,78 N.H. 147, the petition of the mayor of the city for an injunction to restrain the appropriation of the city funds for the purchase of an automobile was denied upon the ground that the mayor by virtue of his office possessed all the power necessary for the protection of the city treasury. McShane's suit against the city for the price of an automobile resulted in a judgment for the defendant on the ground that the automobile was neither bought nor sold on the credit of the city. McShane v. Dover,78 N.H. 507. The sole question now submitted, whether the police department of the city could within the limits of their appropriation pledge the credit of the city for the hire of an automobile for reasonable use in the business of the department is answered in the affirmative.

Whether the police commissioners or the members of the police department did so in this case is a question not agreed, except by inference from the stipulation that if they had such power the case is to stand for trial to determine the value thereof. If the city has had the use of the plaintiff's automobile and the services of his driver, no equitable reason appears why it should not make payment. The city has power to pay what is equitably due even if some legal technicality stands in the way. Clough v. Verrette,79 N.H. 356. There seems to be no occasion, as the facts are agreed, for the trial of any question except the value of the services sued for.

Case discharged.

All concurred.