Opinion
No. 4261.
Argued December 2, 1953.
Decided December 21, 1953.
Trustee process does not lie against a county for the salary of a county commissioner.
ACTION, on a domestic judgment by the plaintiff Marion E. Frame against the principal defendant Ira A. Brown and the county of Rockingham, trustee. The parties have agreed that the principal defendant was elected a county commissioner for a two-year term commencing January 1, 1953, that he qualified on that date and is now serving at an annual salary of $1,800. On January 22, 1953, when the writ was served on the trustee, there was due the defendant $75 on account of salary. Transferred without a ruling by Griffith, J.
Frank A. Batchelder and Russell H. McGuirk (Mr. McGuirk orally), for the plaintiff.
Charles J. Griffin (by brief and orally), for the defendant Ira A. Brown.
Lindsey R. Brigham, county solicitor, furnished no brief.
The primary question transferred to us is whether the county of Rockingham may be trusteed for the salary of a county commissioner. It is too well established here to require extended citation that counties while acting as "geographical divisions of the state for the convenient exercise of sovereign power," cannot be sued in the absence of a permissive statute. O'Brien v. County, 80 N.H. 522, 524. That trustee process is a suit against the State and falls within the prohibition of this rule, there can be no question. Moore v. Dailey, 97 N.H. 278, and authorities cited; 38 C.J.S., Garnishment, s. 39(2). We do not believe that R. L., c. 412, s. 9, expressly authorizing trustee process by service upon "the state treasurer" only, was intended or can be construed to sanction a radical departure from our long settled rule by permitting trustee process on a county. See Moore v. Dailey, supra, 279.
In the case of Wardwell v. Jones, 58 N.H. 305, decided in 1878 and cited by the plaintiff, it appears the question of sovereign immunity now before us was not raised. The rule established by the decision, permitting attachment of fees due a juror from a county was changed by Laws 1879, c. 57, s. 33, now R. L., c. 412, s. 21 VI, and the case is now inapplicable. The statute relied upon in Whidden v. Drake, 5 N.H. 13 (statute of July 2, 1825, 9 N.H. Laws 469) was repealed by the statute of July 3, 1829 (10 N.H. Laws 65) which in turn was repealed by R. S. (1842), c. 230, s. 13.
The conclusion reached makes it unnecessary to consider the remaining questions transferred, and the order is
Judgment for the defendant trustee.
All concurred.