dissenting: It is settled here beyond question that towns as mere subdivisions of the State have only such powers as are given them by the Legislature. Leavitt v. North Hampton, 98 N. H. 193, 197, and cases cited. Among such powers are those of suing, being sued, and prosecuting and defending suits “in any court or elsewhere.” R. L., c. 51, s. 1. Towns are also directed to choose selectmen who “shall manage the prudential affairs of the town and perform the duties by law prescribed.” R. L., c. 59, s. 11. That these statutes authorize selectmen to institute or defend law suits involving the hiring of lawyers is “too clear to be disputed.” Albany v. Abbott, 61 N. H. 157, 159; New London v. Davis, 73 N. H. 72, 79, 80. Indeed, it would be difficult to find any action which seems to fall within the meaning of “prudential affairs” more clearly than that of defending or prosecuting cases. The mere fact that the federal government is a party cannot alter this. This being the selectmen’s duty prescribed by statute, the voters cannot delegate it to others (Attorney-General v. Lowell, 67 N. H. 198, 199), nor can they in the absence of fraud or other illegal conduct override the discretion of the selectmen when acting within their powers. See Berlin &c. Ass’n v. Mayor &c. of Berlin, 87 N. H. 80; Clough v. Verrette, 79 N. H. 356, 359. While carrying on within the scope of their statutory authority, the selectmen are “independent public officers whose duties are prescribed by law, and not by the municipality which elects them.” Felch v. Weare, 69 N. H. 617, 618. Interference with such duties is in effect “void as an attempt to repeal an act of the legislature.” School District v. Currier, 45 N. H. 573.
There is nothing in our statutes expressed or reasonably to be implied which limits their authority in such situations as this, and as fortifying this conclusion, it is significant that wherever the Legislature saw fit to so limit the authority of the selectmen and to place the conduct of certain matters in the hands of the voters a special statute was passed as in the case of suits involving the abandonment of railroads (R. L., c. 51, s. 4 XXYI), and in the employment of legislative counsel. Id., c. 51, s. 9, supra. It is not to be presumed that the lawmakers intended to vest joint control in the selectmen and voters in such affairs as concern us here. The chaotic conditions which would result and of which the present case is an example seem too plain to require delineation. R. L., c. 3, s. 4, cited by the plaintiffs which requires the consent of a majority of the voters of a town to a certain class of taking *466by the federal government is no authority for their position. This chapter is limited to the acquisition by the government of lands which “by reason of . . . location, or condition are better adapted to public conservation, forestry, recreation, experimental, and demonstration purposes than for continued private ownership and development.” S. 6, supra. Furthermore, under this chapter the right of the federal government to take lands by condemnation is denied as against an unwilling owner, which could not be the case as here where the taking is for the purpose of national defense. It is also significant that by R. L., c. 1, s. 3, which is expressly not repealed by c. 3 the selectmen are given the right to assess damages on the taking of land by the government for “public uses” (c. 1, s. 3), which further tends to indicate that the intent of the Legislature was to vest the selectmen with authority here.
Finally, there are sound historical and practical reasons supporting the conclusion that the statutory intent is that the discretion of the selectmen reasonably exercised in such situations as this should not be interfered with. Ours is a republican or representative type of government. True, the voters are supreme but only within the fabric which they themselves have adopted. Here the selectmen were freely chosen by the voters to carry on the business of the town. These officers as well as their constituents are bound by the limits upon their powers which the Legislature, itself the chosen representatives of the electorate, has set. The principle of selecting officers and upholding their discretionary action when within the purview of their authority and when neither fraudulent nor unreasonable, is firmly established in our system of government and conducive to the efficient and intelligent dispatch of public business. Indeed, the practical objections to a system which would seek to persuade competent persons to accept a burdensome town office, only to be exposed to the constant harassment of having their decisions overturned at any time, are such that it seems highly unlikely that this was intended. The people always have the remedy of turning out of office those whose conduct displeases them, but meanwhile, they have chosen these defendants to manage the. prudential affairs of the town, obligated only to act in good faith and reasonably and within the limits of their statutory authority. There is no suggestion here that the selectmen have acted in bad faith or beyond the bounds of reason, and in these circumstances the voters cannot override them.
I would sustain the exceptions.