Mitchell v. Holderness

29 N.H. 523 | Superior Court of New Hampshire | 1854

Eastman, J.

A member of a board of road commission - ers cannot be excluded from acting as such on the ground of interest in the result, unless the alleged interest shall appear plain and direct. Unless he may be liable, ¿y taxation, to contribute to the making of the road, or his property is so situated as to make it clear that his pecuniary interests are to be affected by the decision of the commissioners, he cannot be excluded on the ground of interest.

The fact that a commissioner may reside in a town adjoining that through which the road is to pass, and the inhabitants of which, it may be supposed, will acquire an indirect advantage or receive an indirect injury, by the laying out of the road, might, under some circumstances, induce a commissioner to decline acting in the case; and a like supposition, in regard to himself, might be a still stronger reason for him to withdraw from the board; still, any such supposed advantages or disadvantages would not disqualify him from sitting on the application, if he thought proper so to do. If not personally interested in advancing or retarding the objects of the petition, or related to the parties, or liable in any way to contribute to the making of the road prayed for, he is competent to sit, so far as any objection on the ground of interest can be raised. In some of the small counties, if the road prayed for was to run through several towns, it might sometimes be difficult to organize a suitable board of road commissioners, without affecting supposititiously the interests of some of the board. But an honorable man would let no such considerations affect him. If swayed at all by such influences, it would be to go against his supposed interest.

Under the statute of July 8, 1850, ch. 958, Pamphlet Laws or Comp. Stat. eh. 55, by which towns in the vicinity of those through which a road is to pass are made liable to bear a part of the expense of laying out and building such highways, the question of the apportionment of the expense to such towns does not, ordinarily, arise until after the commissioners have decided that the public good requires the road to be made. Until the towns in the vicinity are in some way made parties to the proceedings, so as to have their liability considered, the only question before the commissioners is, whether the road is demanded for the public accommodation. Such was the opinion of the court as expressed at the present term in Strafford county, in the case of Webster & a. v. Alton and New Durham, (ante, 369,) in which the construction to be put upon this statute was somewhat fully considered.

As soon as the question properly arises before the road commissioners, whether an adjoining town shall contribute to the making of the highway, a member of the board residing in such town becomes interested, and can legally act no further in the premises. He is incompetent, both upon general principles and by express provision of the statute. Pamph. Laws, ch. 1420. But his doings up to that time are not thereby rendered void or illegal, and there is no impracticability in his serving thus far and in appointing a substitute to act, in connection with the other members of the board, in passing upon the question whether the town shall or not be charged with a portion of the expense. Indeed, the act of June 30th, 1853, would seem to have been passed to reach just such and similar cases; for it provides that if any road commissioner shall be interested in any matter whatever, he shall not serve, and the vacancy may be filled at any time, by any judge of the superior court or judge of the court of common pleas in the county in which the matter arises. Pamphlet Laws, ch. 1420.

The chairman of the board of road commissioners, in this case, was not, then, incompetent to serve upon the petition for the road. He was not a resident of either of the towns through which it was to pass, and nothing is disclosed in the case showing that he was in any way legally interested in the question of laying the road. Plymouth was not a party to the original application, and the question of the liability of that town appears not to have been at all considered by the commissioners. But after the commissioners had decided to lay out the road, and the counsel for the towns through which it passed, moved that Plymouth, the residence of the chairman, should be charged with, a part of the expense, he became directly interested in the future proceedings, and of course incompetent to act. Until then, however, he was competent.

The fact, that evidence was introduced in the progress of the hearing, tending to show that Plymouth would be considerably benefitted by the making of the road, did not make him interested. Such evidence might with propriety be in-traduced on the question of the necessity of laying the road, as showing the extent to which the public would be benefited by its construction ; and evidence of that character is often introduced upon hearings for highways. But it does not thereby follow that the towns through which the road is to pass, will, in the language of the statute, be excessively burdened by defraying all the expenses of its construction, and that the towns in the vicinity will be greatly benefited. Both of these facts must exist before a portion of the expense can be ordered to be defrayed by the towns in the vicinity. And they are not subjects that require to be investigated till the commissioners have decided to lay the road.

It appears to us, also, that there is an inherent difficulty in pronouncing the doings of this commissioner invalid. The statute speaks of the towns “ in the vicinity,” as being liable to contribute. To what extent is this to go so as to exclude a commissioner ? Where is the vicinage to terminate 1 Who are to fix limits ? And is a party, by raising this question at the outset, before the merits of the petition for the road have been considered, to have it in his power to exclude a commissioner, when the town in which he resides is not a party to the record ? These are questions that are at once suggested when we depart from the construction that we have put upon the statute, and from the principle that it is a direct interest, and not a remote or supposed advantage, that shall exclude a commissioner from acting.

As the chairman of this board was competent to act in the laying out of this highway, and the doings of the board appear to have been complete and definite, so far as they went, we see no objection to the appointment of some one to act upon the question presented by the counsel for the towns, as a substitute for the member of the board residing in Plymouth. And the board thus organized will decide whether Plymouth shall defray a portion of the expense of constructing the road or not.

The opinion, therefore, to be certified to the common pleas, will be, that a commissioner may be appointed as a substitute for the chairman.