In re Rindge

| N.H. | Dec 15, 1873

Hibbard, J.

It was decided in the last preceding case that an order of notice upon a petition for laying out or altering a highway must in all cases be made returnable to the next term of the court. It was shown, in the opinion which was delivered in that case, that the general authority of the court, under sec. 18, ch. 207, Gen Stats., to determine what notice shall be given upon petitions, does not extend to petitions for laying out or altering highways, for the reason that the notice to be given in such cases is expressly prescribed in sec. 2, ch. 63.

Provision is made, by sec. 1, ch. 65, for the discontinuance of highways “ on petition to the supreme court and like proceedings thereon, as in laying out highways; ” and the original petitioners contend that the effect of the words “ like proceedings thereon ” is, to require the same notice in the former case that the statute prescribes in the latter. We think, however, that this is not the true construction. The only statutory provision respecting notice of laying out highways is that prescribed in sec. 2, ch. 63, which is, that notice shall be given to the towns through which they may pass twenty-eight days before the next term of the court, and that is inapplicable to petitions for a discontinuance. It must, therefore, be held, that the order in this case for notice by publication, and by personal service upon one of the original petitioners, was authorized under sec. 18, ch. 207, if it was authorized at all, as it clearly was under that section, if ¿he question is not affected by any other statutory provision.

It may be supposed to have been because it was understood that the notice to be given upon petitions for a discontinuance was not fixed by any statute that the sixty-eighth rule of court was established, which, as it requires such petitions to be “ entered in the clerk’s office at least thirty days before the commencement of the term,” and provides for an order of notice by publication “at least three successive weeks before the term,” must be construed as not authorizing such a notice to be made returnable during an existing term. But the sixty-eighth rule was virtually suspended by the presiding judge, who was authorized to make a special rule in this case exempting it from the operation of the ordinary general rule. Deming v. Foster, 42 N. H. 179; Eastman v. Amoskeag Manf’g Co., 44 N. H. 154; Kimball v. Marshall, ib. 466.

When the sixty-eighth rule was established, and down to the enactment of the General Statutes, the provision for “ like proceedings thereon as in laying out highways,” upon which the original petitioners rely, did not exist, and petitions for a discontinuance clearly came within the authority vested in the court by sec. 20, ch. 186, Rev. Stats., which was reenacted in sec. 18, ch. 207, Gen. Stats.; and we find nothing in the General Statutes to indicate that the legislature, in enacting them, intended to take from the court any authority it previously had respecting highway petitions by virtue of sec. 20, ch. 186, Rev. Stats.

No reason occurs to us why the power of the court to make an order of notice returnable during an existing term should not be the same upon a petition to lay out or alter as to discontinue a highway; but the language which the legislature has seen fit to use constrains us to hold that the notice required in the two cases is not the same.

The motion to dismiss was therefore rightly denied.

Exception overruled.