Opinion
Decided April 3, 1934.
P. L., c. 38, ss. 1, 2 requires that county commissioners shah act as a body; and although a majority determine the action of the body, all members are entitled, prerequisite of action, to be consulted on all matters and to have them discussed and considered in conference. Hence, an agreement of two commissioners with each other when no meeting of the board has been called to consider the subject, that a pauper bill should be paid does not bind the county. A waiver whether by words or conduct does not extend beyond their fair meaning; hence a practice of county commissioners to pay city pauper claims, without insistence on the statutory requirements as to presentment, etc., in cases where the claims had been promptly presented, is not applicable to claims which had remained unpresented for a period of four and one-half years. In such case, though the failure to supply the vouchers and affidavits was due to mistaken view of the extent of the prior practice, the county, having done nothing to cause the mistake, may avail itself of the statutory defence.
PROCEEDING, under P. L., c. 38, s. 14, to determine the merits of a claim of the plaintiff city to be reimbursed for the expense of support of a county pauper. The support was furnished for a number of years before the claim was presented, but no evidence of laches in presenting it was introduced except the fact of the delay. When the matter was brought to the county's attention, two of its commissioners agreed that the bill should be paid, but in the absence of the third one no action was then taken. Thereafter nothing was done about it until a new board came into office, when it was disallowed for nonpresentment of supporting vouchers and affidavit within the time prescribed by statute. Until then there had been a running practice, found to be based on "a general understanding, or sort of gentlemen's agreement," by which pauper claims against the county presented by the city were paid without insistence on compliance with the statutory requirements relating to presentment, vouchers and affidavit. The bills, however, were usually presented soon after payments by the city, and there had been no cases of any covering so long a period as the one here in dispute.
The court (Page, J.) transferred, without ruling, the question whether the board of commissioners, or a majority of them, might waive the statutory requirements, with effect to estop the new board from setting up non-compliance therewith in defence.
Harold E. Wescott (by brief and orally), for the plaintiff.
theo S. Jewett, solicitor, and Arthur H. Nighswander (Mr. Jewett orally), for the defendant.
A large part of the agreed statement of facts is a summary of testimony. It would be unconsidered (Nashua Trust Co. v. Burke, 84 N.H. 490, 491) but for the apparent recognition of its truth by the parties.
The agreement of the two commissioners, in the absence of the third member of the board, that the bill should be paid, furnishes no ground to meet the county's defence. By the findings no action was taken, and, as they are understood, the agreement was not with the city's overseer of the poor but only between the two commissioners.
Moreover, even if the agreement had been made with the overseer, no waiver would be chargeable to the county. The statutes make a difference between the organizations of boards of county commissioners and of selectmen. The former choose from their number a chairman and a clerk. The clerk, among his duties, is to keep a record of their proceedings. P. L., c. 38, ss. 1, 2. The design that the commissioners shall act as a body, is clear. While a majority may determine board action, there must be such action. All members are entitled to be consulted on all matters and to have them discussed and considered in conference. Action is to follow meetings held or consultations had to pass upon its proposal. The structure is like that of the ordinary board of directors or managers. In the case of selectmen, "A majority . . . shall be competent in all cases." P. L., c. 47, s. 12. "The construction of this act . . . settled by usage is, that when there are two selectmen there is a legal board." Tyler v. Flanders, 58 N.H. 371, 373. In summary, a board of selectmen may be one less than their full number, while a board of county commissioners may not act without notice to all of them.
The city's right to rely upon the practice of non-insistence upon the statutory requirements depends upon the nature and extent of the practice. Conceding that they may be waived and that the waiver may establish an estoppel (Lyman v. Littleton, 50 N.H. 42), one does not readily find from the reported facts a waiver intended to have legal effect. The understanding about it is characterized as "sort of gentlemen's agreement." Whether this expression is meant to convey the thought that no legal effect was to be given the practice or that it was to be given effect without consideration of the force of law to do so, is not clear. The facts leave the understanding doubtful.
But whatever legal results might follow from the practice, it could not bind the county for matters outside or beyond its range. "A waiver by either words or conduct does not extend beyond their fair meaning." Daley v. Company, 81 N.H. 502, 504. The practice was inapplicable to cases of long duration. Bills were usually presented monthly, and in no instance where the account had run, as here, for so long as four and a half years. An account of such long standing was special and exceptional, and the practice could not be reasonably relied upon to control and govern the procedure necessary for its allowance. Naturally its extraordinary feature put it outside the pale of ordinary treatment. Promptness in presenting bills after their payment by the city was a term of the practice, and there was no provision implied that substantial delay, whatever the reason for it, was excused. The vouchers and affidavit were not supplied because of a mistaken view of the extent of the practice. The practice permitted their omission in certain cases, of which this was not one. It did not include cases of omission outside of its limits but thought to be within them, although the mistake was one of misfortune free from blame. Relief is sought on a claim of waiver of the statute leading to its disregard, but there was no waiver. The county did nothing to cause the mistake and is in a position to avail itself of the statutory defence.
The record is not clear in showing a finding that the delay in presenting the claim was due to the city's laches. But the conclusion reached avoids any occasion to construe it in respect thereto.
Case discharged.
All concurred.