55 N.H. 311 | N.H. | 1875
Lead Opinion
The first objection made is, that there was no location duly made by the district for a school-house, so as to give the commissioners jurisdictions. This objection seems not well founded. *314 When the district voted to fit up and repair their school-house, and purchase new land to straighten the line, it would seem that they had as distinctly determined where their school-house should be located as if they had made an express vote. Sec. 6, ch. 80, Gen. Stats., authorizing the selectmen to condemn land for a school-house lot, empowers them to lay out a lot not exceeding half an acre — evidently contemplating that the location designated has not been described by metes and bounds, so that such description does not seem to be necessary.
It is further objected, that the report of the commissioners does not show that the commissioners found, as a fact, that there had been a location, or that the petitioners were aggrieved. The petition alleged that the petitioners were aggrieved by the location, and the commissioners, after due hearing, changed the location; and all this appears of record. As, in fact, there had been a location, and the commissioners determined to change it, it appears to my that the record is sufficient. The whole, taken together, shows substantially that the petitioners alleged that they were aggrieved by the location of the schoolhouse, and that the commissioners found so. The parties have not found it necessary to bring the exact record before the court. Acting upon the information which is given us by the case, it seems that there is enough apparent to slow that the commissioners had jurisdiction.
It is further objected, that the district had never acquired any title to the land, and that therefore the selectmen cannot proceed to build. It is true that the statute does not, in express terms, authorize the selectmen to negotiate for the land, or cause it to be condemned, if necessary; but the terms of the statute are broad enough to embrace that power, and it must be understood that it was so embraced, since otherwise the selectmen would be powerless to act in many if not in most cases. If the selectmen would have power to pay the damages, it would seem to follow that they must have power to accept, for the benefit of the district, a suitable release. The fact, if it be so, that the owner of the land is willing to give it, does not make his release less available.
It appears from the case stated, that when the district voted to abandon the location of the commissioners, they had already voted to dismiss the only article under which that subject could have been acted upon. Article 9, under which the vote appears to have been taken, is stated in the case to have been general in its nature, and to have contained no allusion to this subject. No attempt appears to have been made to reconsider the vote dismissing the first article. It is said, also, by the defendants, that the statute does not authorize districts to abandon locations, but only to change them. For both those reasons it appears that the location has not been abandoned.
It is also objected, that a location by the commissioners is not one of the locations mentioned in the statute on which the selectmen may build if the district neglect. It would be a strange result if the law were so left that the district could not in any way be obliged to build a school-house after the commissioners had located it. The statute, *315 however, appears to treat the commissioners' location as supplementary to and a completion of a process of which the other modes of location may be the commencement. The statutes, being in pari materia, must be construed together, and so, if possible, as to give effect to the whole. The proceeding before the commissioners seems to be in the nature of an appeal, and a continuation and completion of proceedings commenced in the other modes, — so that it seems admissible so to construe the statute as to embrace in the term "lot so designated," the lot which is the subject of consideration in this case. It is objected that one of the selectmen had taken some part in preventing the commissioners from taking other land. That question having been determined and a different location established, it is not easy to see how he should have any feeling or any interest. It does not appear that he was a member of the district, or interested in it, but only had an outside interest in land which was not taken. It is difficult to see how this can furnish any reason to the plaintiff for recusing such selectman. If these views are correct, there is no occasion to interfere with the proceedings of the selectmen, and the bill must be dismissed with costs.
Concurrence Opinion
I also think the bill must be dismissed.
The fact of the existence of a school-house located on the east side of the river, taken in connection with the fact of the union of the two districts, and the votes of April 6, 1874, as it seems to me amount to a location by the district of the school-house on the lot east of the river, within the fair meaning of the act of 1871. (Laws of 1871, ch. 4.)
I see no valid objection to the proceedings of the county commissioners in determining the location upon the west side of the river. Their decision as to the location includes the fact that the petitioners were aggrieved. There was no necessity of their reporting that fact. The decision in writing, which the are required to file with the clerk of the district, has reference only to the location.
Whether the act of 1871 is defective in not fixing the length of time for which the decision of the commissioners shall be binding, need not now be inquired. It would doubtless be somewhat anomalous if the decision of a tribunal, invested by law with final and exclusive jurisdiction to determine the location of a school-house, could be overruled and annulled the next day after it is promulgated by a vote of the very majority against whose acts the judgment of such tribunal has been invoked. But whether in the present condition of the statutes on the subject that be so or not, I am of opinion that the judgment of the commissioners establishing the location had not been abrogated by any action of the district at the time this bill was commenced, for both the reasons suggested by the defendants' counsel in their brief: (1) There was no article in the warrant for the meeting of July 29, 1874, under which a vote abandoning the location could legally be had; (2) if such power exists in the district, which I by no means admit, it can only be exercised by changing the location, not by simply undoing what the commissioners have done. *316
The vote to dismiss the first article in the warrant of July 29 was undoubtedly a sufficient refusal by the district to warrant an application to the selectmen, under ch. 80, sec. 8, Gen. Stats., to say nothing of the neglect inferable from the dilatory proceedings shown by the case. It is said that this section empowers the selectmen to assess a tax and cause a house to be built only on a lot designated as provided in the earlier sections of the same chapter, and does not give them authority to build on a lot designated by the county commissioners according to the act of 1871. The result would be, that a locating by the county commissioners under the act of 1871 is worse than idle and nugatory, inasmuch as it puts it out of the power of the district to provide themselves with a school-house unless a majority shall finally agree to accept the location of the commissioners. For, after a location by the commissioners, they cannot legally build elsewhere; and if there is no way to compel the erection of a building on the lot designated by the commissioners, it clearly follows that the legislature not only very cunningly frustrated the sole purpose of their own act, but put it in the power of the minority in a school district to defeat all efforts of the majority to perform their legal duty in providing a school-house. Nothing short of language most explicit and unmistakable would warrant the court in finding a legislative intent so absurd.
The difficulty all disappears, as it seems to me, if we look at the statutes together. The title of the act of 1871 is, "An act in amendment of ch. 80, Gen. Stats., in relation to school-houses." The whole scope and purpose of sec. 8, ch. 80, is to provide a method for compelling the erection of a school-house on a lot legally designated for that purpose.
The two acts are in pari materia, and I think a plain application of a very common rule of interpretation requires us to hold that the provisions of section 8 apply as well to the new mode of designating the lot furnished by the act of 1871, as to modes in existence when the General Statutes were enacted.
The fact that one of the selectmen had signed a remonstrance against taking land of the Baptist society seems to be quite immaterial on the question of his competency to assess the tax.
SMITH, J., concurred.
Bill dismissed. *317