Moore v. Sandown

19 N.H. 93 | Superior Court of New Hampshire | 1848

Gilchrist, C. J.

"We are of opinion that the court of common pleas has acted erroneously in removing Locke from the board of road commissioners, and substituting Noble to serve in his place upon the petition for the discontinuance, and that Locke had not such an interest as disqualified him from acting upon the petition. The only interest alleged is, that in the year 1839 Locke was one of the petitioners for a highway over this route. His signature to that petition is, at most, only an expression of his opinion, that in year 1839, eight years before the last petition for the highway was filed, there was occasion for a new highway over the route described in the last petition, and in the petition for discontinuance. He might, at that time, have had sufficient reason to entertain such an opinion, and yet in the period of eight years that intervened, numerous circumstances might have happened to change his views. In adjudicating upon a question which is to be determined merely by the lapse of time, it is impossible to fix any definite period in which the views of a person might be supposed to have become modified and changed ;from what they originally were. The most that can be done is, to approximate to accuracy by reflecting how frequently and in how short a time the opinions of men are changed, even upon subjects upon which they supposed, in the beginning, their judgments were definitely formed. In such a case as the present, it is very evident that the line cannot be accurately drawn. How many years must pass before a man may be supposed to have become freed from such a bias as signing this petition may imply, and before he may be considered to be impartial ? If eight years, the ninth part of the allotted life of man, will not have this effect, can we say that sixteen years will do so, or even thirty-two years ? But, in truth, such an expression of opinion should not incapacitate Locke from acting, because a judgment that it would incapacitate him, would render necessary a degree of freedom from bias which cannot be expected to exist in men so long as they are fallible. As it is immaterial in what way the alleged interest is proved to exist, provided it be proved, it would be necessary to go but one step further, and show by circumstantial evidence and by remarks made in conversation, when a subject of such public interest was discussed, that eight years ago Locke must have entertained the opinion that the public interest required a highway between these termini, and thereby exclude him from acting. It is very evident that the adoption of a principle so difficult to be put in practice, would introduce greater and more numerous evils than it would avoid. But it would be the necessary result of a decision that signing the original petition, which is only the expression of an opinion, would show such a degree of partiality that he ought not to act in this matter. We do not, however, intend to go beyond the precise question raised by the case, and our judgment simply is that the signature of the petition by Locke, in the year 1839, did not authorize the court to remove him from the board of road commissioners, and substitute Noble in his place.

As to the question whether a writ of certiorari will lie in this case, it is said by Mr. Justice Greene, in the ease of Huse v. Grimes, 2 N. H. Rep. 210, that a writ of certiorari lies to reverse the doings of inferior jurisdictions, whose powers are given them by statute, whose mode of proceeding is unknown to the common law, and who render their doings effectual, not by a judgment, technically so called, but by orders to be executed in a summary way, such as orders for the laying out of highways, and for the removal of paupers. So in the case of The State v. Thompson, it was said by Richardson, C. J., that the power to issue a certiorari is given to this court to keep inferior courts within the bounds of their jurisdiction, and where the court of common pleas had no authority to order an abatement in a tax, it was held that there was good ground for granting a certiorari.

In Robbins v. Bridgewater, 6 N. H. Rep. 524, it was held that the proceedings of the court of sessions, in laying out a highway, might be quashed upon certiorari. The office of a certiorari is to bring up the proceedings in the court below, that they may be examined, and if found erroneous, may be quashed. Hopkinton v. Smith, 15 N. H. Rep. 152.

In the case of Wilbraham v. Commissioners of Hampden, 11 Pick. 323, the question was raised upon a petition for a certiorari whether one of the commissioners was disqualified from acting, by his alleged interest, and also in the case of Danvers v. Commissioners of Essex, 2 Met. 185.

By the first section of the act of July 2,1846, it is provided that upon all petitions relating to roads, if any commissioner be interested in any such petition, he shall not serve, but the vacancy shall be filled by the court of common pleas in which such petition is pending. In this case, the question before the court of common pleas was, whether Locke was so interested in the petition for the discontinuance that he was disqualified from acting as a commissioner in relation to it, by this section. Whether the fact that he was one of the petitioners for the highway, in the year 1839, disqualified him from serving, was a question of law, to be determined by the court, and having been adjudged to be thus interested, he was removed and another person was put in his place, and the board of commissioners thus constituted, or a majority thereof, reported thatthe highway ought to be discontinued. These proceedings are sought to be quashed, on the ground that the court erred in holding that Locke was disqualified by having such an interest as was contemplated by the statute. Now the court of common pleas had the power and right to determine, in the first instance, whether a disqualifying interest existed. Their judgment, however, must be rendered subject to the supervision of this court, whether upon the facts stated Locke was disqualified. The court of common pleas are not to determine, without appeal, whether this interest existed, and whether it is such an interest as the Legislature intended. It is not consistent with the practice in any case, unless some exception may exist which does not now occur to us, that upon questions of law involving the rights of parties, the judgment of the court of common pleas should be final. Where proceedings of this kind are had in the court of common pleas, in consequence of an error of the court on a question of law, a proper case is presented for the exercise, by this court, of its supervisory power. The judgment of the court, therefore, is, that the certiorari must go. The judgment of the common pleas accepting the report laying out the highway, consequently, remains in force, but the proceedings relating to the discontinuance of the road must be quashed.