Opinion
No. 3966
Decided January 2, 1951
The offices of town clerk and tax collector may not legally be merged by vote at a town meeting.
PETITION by Emery N. Eaton and others for a declaratory judgment to determine the validity of the vote of the town of Seabrook to merge the offices of town clerk and tax collector. The case was submitted to the court upon an agreed statement of facts and to the order that the vote was legal the plaintiffs excepted. From the facts so far as material it appears that the town warrant for the annual meeting in 1949 contained an article "To see if the town will vote to merge the offices of Town Clerk and Tax Collector. . . . "At the meeting that year it was voted to merge the two offices and establish single salary. The warrant for the annual meeting in 1950 contained an article to elect "a Town Clerk — Tax Collector" and to this office the defendant was elected. The parties submitted to the court the questions whether the merger and election of the defendant were contrary to R.L., c. 59, ss. 1, 41, 44, and whether the defendant was legally elected to the office of town clerk — tax collector.
Transferred by Sullivan, J. Other facts appear in the opinion.
William H. Sleeper and Wayne J. Mullavey (Mr. Mullavey orally), for the plaintiffs.
Samuel Levy and David Strater of Maine (Mr. Strater orally), for the defendant.
The basic question is whether the vote of the `town to merge the offices of tax collector and town clerk is legal. We believe it is not. Towns have only the powers which the state grants them. Amyot v. Caron, 88 N.H. 394, and authorities cited; 62 C.J. S. Municipal Corporations, ss. 107, 115. While there is nothing to prevent the election of the same person to the separate offices of tax collector and town clerk, neither our Constitution nor statutes indicate that authority. has been given to towns to merge these two offices which the Legislature has kept separate and for which it has prescribed widely different functions. R.L., c. 59, s. 16, provides for the removal of a tax collector by the selectmen; s. 34 for his removal by the Tax Commission and section 44 states that no person shall "be compelled to serve as collector in any case." No such provisions appear regarding town clerks. R.L., c. 59, s. 41, provides that various officers including tax collectors "shall severally perform the duties prescribed by law." (Italics supplied). It seems unnecessary to multiply examples of the radical distinctions established by law between the two positions.
In 1947 when it was deemed proper to permit a merger of the offices of tax collector and town manager it was considered necessary to pass special statute authorizing such action. Laws 1947, c. 236, s. 3. Had it been thought this power existed this law would have been unnecessary.
It appears the town seeks to alter substantially the nature of each office under consideration here by adding to it the duties of the other — duties so onerous in the case of the tax collector that the Legislature prescribed that no one should assume them against his will. This cannot be done. Cf. Coleman v. District, 87 N.H. 465, 470. Neither in R.L., c. 59, s. 41, permitting a town to choose officers "necessary for managing its affairs," or elsewhere is there authority to create in effect new offices in place of those designated by statute. See Attorney General v. Lowell, 67 N.H. 198, 199. It appears the attempted merger is invalid and the order is
Judgment for the plaintiff.
All concurred.