| N.H. | Dec 5, 1886
At the time the proceedings for the highway now in controversy were commenced, the statute authorized the commissioners to apportion part of the expense of its construction to other towns in the vicinity benefited thereby, but gave them no power to award contribution for its future maintenance and repair. Comp. Sts., c. 55, s. 1. Under this statute the defendants were found liable to contribution; and the commissioners in their report fixed the amounts they should respectively pay towards the construction of the highway. Having done this, the duty of the commissioners was performed and their power exhausted; and there being no facts tending to show that they violated their trust by increasing the award against either of the defendants on account of the expense of the subsequent maintenance of the highway, and the legal presumption also being to the contrary, the judgment upon the report is to be taken as an adjudication that the defendants were assessed agreeably to the statute and not otherwise.
The defendants' contribution to the original construction of the highway not being a bar to the present petition for rebuilding and keeping it in repair, and the power of the commissioners to impose contribution upon them for rebuilding being expressly conferred by statute, the only matter remaining to be considered is that part of the report which requires the defendants to contribute to its repair in the future.
In respect of future contribution, the authority of commissioners primarily rests upon c. 72, s. 4, Gen. Laws, which provides that "when the expense of rebuilding or repairing a highway would be excessively burdensome to the town in which it is situate, and another town is greatly benefited by such highway, the commissioners, on petition to the supreme court and proceedings thereon, as in the case of laying out a highway, may order a portion of the expense to be paid by such other town." In express terms, this statute does not authorize commissioners to award contribution for the future, but nevertheless we think it is to be so construed There is certainly nothing in its language showing that the legislative purpose was to restrict its operation to immediate repairs, rather than to those certain to be required sooner or later in the ordinary course of events. The phrase "rebuilding or repairing a highway," as used in the section under consideration, as well as in the preceding s. 1 and the title of the chapter itself, fairly means keeping a highway in repair in view of its continuing necessities and the continuing duty of the towns benefited by it, as contended by the plaintiffs' counsel; and therefore repairing is not to be construed as limited to one point of time, but as relating to the future as well as to the present. *309
The same conclusion follows from the application of the familiar principle in statutory construction, that all statutes upon the same subject-matter are to be considered in interpreting any one of them. The substantial part of this highway is a bridge, and when this is the case the last clause of s. 12, c. 68, provides that other benefited towns than the one in which it is situate shall at all times contribute their proportion towards its repair and maintenance, to be determined by the commissioners at the time of laying out the highway. It is true that this clause is directly applicable only to highways laid out subsequently to its adoption, but it is, nevertheless, important in its relation to the present case as showing that the legislative purpose then was to compel all benefited towns to contribute proportionally towards the future maintenance of highways burdensome to the towns where situate, and in which the building of bridges constituted a substantial part of the expense of their construction.
This material change in the law first appeared in the revision of 1867. The effect was manifestly to discriminate between precisely similar cases, and make the matter of future contribution depend entirely upon the point of time when the petition for such a highway happened to be filed. For example: If the original petition for this highway had been filed at the November term, 1867, rather than at the May term, 1866, when it was actually filed, it would have clearly come within the express terms of the clause referred to, although it is equally clear that the subject-matter of the petition came within the reason and policy of the statute no less in the former year than in the latter. To provide against and remedy the inequality and injustice that would otherwise necessarily result in this class of cases, the legislature enacted s. 4 at the same session the bridge clause was enacted, and thereby put cases arising before the adoption of that clause on the same footing with those arising after its adoption; and also went one step further, and extended the right of future contribution to all cases of burdensome highways, whether from bridges or otherwise, arising before the adoption of the clause and not included in it, as well as to cases arising after its adoption.
The commissioners did not exceed their authority in apportioning part of the future maintenance of the highway to the defendants; but if time brings changes that may make the apportionment inequitable, it may be altered by the court upon proper proceedings. G. L., c. 68, s. 12; c. 72, s. 4.
Judgment for the plaintiffs on the report.
ALLEN, J., did not sit: the others concurred. *310