Hett v. Portsmouth , 73 N.H. 334 ( 1905 )

The city councils by concurrent vote regularly appropriated a sum of money for "permanent street improvements." It is claimed that this object is so indefinite as to amount to an attempted delegation of legislative power to the executive officers whose duty it might be to expend the money. If it is conceded that the expression, standing alone, and unexplained or unlimited by extraneous evidence, might include a great variety of public highway enterprises, the kind, locality, and extent of which would require the exercise of that degree of deliberation and judgment which is vested in the governing body, the question remains whether the circumstances attending the vote do not sufficiently limit the general scope of the language used. What was the intention of the members of the city council passing the vote, when ascertained from a consideration of all the competent evidence? What did they understand was included in the expression "permanent street improvements"? The facts that the city had in 1903 adopted a policy of making permanent improvements in the road-bed of the streets, as contradistinguished from temporary repairs, by using asphalt paving, that after an investigation of the subject the city had appropriated money for asphalt paving, and that a considerable amount of that paving was laid, proving to be satisfactory, constitute evidence showing that work of that character upon the streets was included in the title to the joint resolution of 1904 and in the body thereof. That such was the intention of the city councils can admit of little doubt under the circumstances, while such a purpose is not inconsistent with the language used. It is therefore unnecessary to inquire whether other highway improvements might not be called permanent.

As the city councils had legally voted an appropriation for repairing the streets (Hall v. Concord, 71 N.H. 367, 371) by using asphalt paving, the duty of carrying the vote into practical effect devolved upon the board of mayor and aldermen. In the absence special legislation upon the subject, they have the powers of selectmen in towns in this respect. P. S., c. 46, s. 2; Ib., c. 48, Laws 1899, c. 29, s. 3. If the appointment of a special committee to provide for the doing of the work was illegal, the contract which they attempted to make in behalf of the city was afterward ratified by a formal vote of the board of mayor and aldermen; and since it was within the power of that body to make it in the first instance, it became valid and binding upon their adoption of it. School District v. Gilman,3 N.H. 168; Monadnock R.R. v. Peterborough, 49 N.H. 281; Hitchcock v. Galveston, 96 U.S. 341, 348, 349.

The fact that the joint resolution provided that the special committee should "report their doings to the city councils" is immaterial upon the question of the validity of the contract which was one of the things they did, and which, if invalid when made, was validated afterward by ratification.

The appropriation of the license money amounting to about $17,000 for street improvements was legal. That it was designated as license money is unimportant, except as indicating the source from which it was derived and the amount of the appropriation. There is no sound reason for the claim that the identical money should have been kept on hand, or that the contractor was bound to see that after it had been legally appropriated for one purpose had not been in fact used for other purposes. His rights under his contract do not depend upon a mere matter of formal bookkeeping by the city treasurer.

Exceptions overruled.

All concurred.