In re New Boston

49 N.H. 328 | N.H. | 1870

Foster, J.

The petition of Ziba Hoit and others, for anew highway in the towns of New Boston and Wearé, was referred to the county commissioners at the May term of the supreme court, 1867. At the time of the hearing of this petition before the commissioners, the town of New Boston, by their agents, appeared and opposed the laying out of the highway, and at the same time presented their petition to the commissioners setting forth that the expense of constructing the highway would be excessively burdensome to the town of New Boston, and that the town of Franeestown would be greatly benefited thereby, and praying that a part of the expense of building the highway, if constructed, should be borne by Franeestown. The town of Franeestown appeared and was heard upon the question of laying out the highway.

At the May term, 1868, the commissioners made their report, laying out the highway and assessing a portion of the expense upon the town of Franeestown. Their report was accepted by the court.

There was much evidence before the commissioners tending to show that the building of the road prayed for, would tend to the pecuniary advantage of the Franeestown Soapstone Co., a corporation doing business at Franeestown, by furnishing to them increased facilities tor the transportation of free stone from their quarry, situated near one of the termini of the proposed highway.

After the acceptance of the report, it came to the knowledge of the present petitioners that Gilman Scripture, one of the commissioners, who sat and acted upon the petition for laying out the highway, was a stockholder in the Franeestown Soapstone Co. The corporation was taxed and paid taxes in Franeestown. Mr. Scripture was, therefore, to some extent, directly interested in the question, not • only of the amount which the town of Franeestown might be assessed, but also in the question, whether or not the highway should be laid out. The corporation being liable by taxation to contribute to the making of the road, his pecuniary interests were liable to be affected by the decision of the commissioners.

The objection of interest strikes at the foundation of the whole proceedings of the commissioners, and not merely to the question of the assessment upon Franeestown, since that town was made a party to the original proceedings, and the matter of the alleged pecuniary advantage to the Soapstone Co. was one directly connected with the question, whether or not the road should be laid out.

There is no evidence tending to show that the present petitioners had any knowledge or cause of suspicion of Mr. Scripture’s interest in the proposed highway; aird there is nothing tending to show any waiver in law, or, in fact, of the exception now taken by them.

The statute is peremptory. If one of the commissioners be interested, he shall not serve. Mr. Scripture was interested and did serve.

The court, therefore, has no discretion in the matter. If it had, it would probably be exercised in accordance with those general principles which exclude from the judicial tribunal, the judge, juror or 'commissioner, who must either “ gain or lose” by the event of the proceeding before him. There can be -no discrimination as to the extent or amount of the interest, nor whether the cause may have been‘decided upon considerations independent of it. The smallest pecuniary interest disqualifies the party who is to act in the decision of the cause. There can be, and there ought to be, no infringement or relaxation of the rule. Gen. Stats, ch. 63, § 6; Comp. Stats. ch. 53, § 6 ; Gen. Stats. ch. 194, § 22 ; Bill of Bights, Art. 35 ; Petition of Nashua, 12 N. H. 425 ; Mitchell v. Holderness, 29 N. H. 523 ; Moses v. Julian, 45 N. H. 52.

The judgment entered upon the report of the commissioners at the May trial term, 1868, must be vacated, and a

New trial granted.