59 A. 363 | N.H. | 1904
The defendants contend that the vote of discontinuance upon which the proceeding is founded is illegal and void. One ground upon which this claim is based is the offer of Mrs. Tracy to build a new highway in place of the old. Unless it was understood that the new highway would be of greater public convenience or less expensive to maintain than the old, the proposition would offer no inducement for a change. The most that can be claimed as the result of the offer is that thereby the town became interested to vote the discontinuance. The defendants' contention, that because of such interest the action taken is illegal, and void, is based upon the false assumption that in acting upon a question of highway discontinuance a town acts in a judicial capacity. The release of the public right in a highway, involved in its discontinuance, is in its nature a legislative and not a judicial function, which may be directly performed by the legislative agents of the state. State v. Sunapee Dam Co.
The vote of the town, which specifically referred to the first article in the warrant, was to discontinue the highway, "provided Mrs. Jane A. Tracy will, at her own expense and without any expense whatever to the town of New London, build a highway to take the place thereof." It is claimed that this vote is void, because it is not a valid exercise of the power conferred by the legislature upon towns to discontinue highways. By section 1, chapter 72, Public Statutes, it is provided that "highways in a town may be discontinued by vote of the town." Section 2 limits this general grant of power by providing that "if the highway was not laid out by the selectmen, . . . the highway shall not be discontinued without the consent of the court." As the highway in question was not laid out by the selectmen, the town's action, if valid, required the approval of the court to become effective. But this qualification or limitation of the power conferred may be eliminated from the present discussion. It has no bearing upon the question of the validity of the town's vote. Until there is a valid vote of the town discontinuing the highway, the consent of the court is unimportant.
Did the town pass a legal vote to discontinue the highway described therein? The only objection to the vote is that the condition upon which the discontinuance was to take effect was, beyond the power of the town to impose. No reason is apparent why the general discontinuing power may not be exercised to take effect at a time subsequent to the vote, or when another highway shall be laid out and constructed to take the place of the old one. There is nothing in the statute expressly forbidding such action, while the reasonable and convenient exercise of the discontinuing power in many cases would be seriously hindered, or wholly prevented, if the vote could not be made to depend upon a future event. Although there might be the most urgent public necessity for the discontinuance of an old highway and the construction of a new one, the town might be unwilling to discontinue the old way until the new one had been constructed, while no necessity would exist for the new way while the old one remained. The public need might require the discontinuance of the one and the laying out or building of the other, but not the one without the other; in such a situation the laying out of the new road by the, selectmen would be prevented because the old one was not discontinued, and the discontinuance of the old one by the town would be prevented because the new one had not been built. *76
Such necessary interdependence of the action of distinct tribunals would result in effectually defeating a public highway improvement admittedly demanded upon grounds of the highest public necessity. It is not believed that the legislature intended to limit the power of towns in regard to the discontinuance of highways as to produce such a result, or to provide in effect that a town shall have no power to vote to discontinue a highway when another way to take its place is subsequently constructed. Such limitation is based upon no substantial reason, is supported only by technical argument, and results in obvious injustice and hardship. Hence it cannot be sustained. The remark of the court in Cheshire Turnpike v. Stevens,
In Coakley v. Railroad,
It is a principle of general application that votes passed at town-meetings should be liberally construed. If they fall within the authorized powers of the town, ingenious distinctions between conditions precedent and subsequent will not be unnecessarily resorted to, when the effect would be to defeat the apparent intention of the voters in a matter admittedly within their legislative province. As early as 1826, the court remarked in Adams v. Mack,
The vote of the town of New London, taken in connection with the first article of the warrant, unequivocally indicates a purpose to discontinue the old road upon the completion of a proposed highway "to take the place thereof." It was not deemed desirable to abandon the former as a means for public travel until the latter was constructed. The vote, therefore, was in effect that the actual discontinuance of the road should not be coincident with the vote, but should be postponed until a new way was opened. To such a vote no legal objection is apparent, while there are many obvious, practical reasons in its support. Coakley v. Railroad, supra.
Another material condition annexed to the vote was that the building of the new road, whenever that event occurred, should be "without any expense whatever to the town." It was not important to the town whether this expense was assumed and paid by Mrs. Tracy, or by some other person or persons. The payment of the expense by some one other than the town would protect the town from that burden, without regard to the question who the particular person might be who should assume the expense. The reference to Mrs. Tracy in the proviso is immaterial. The idea of the voters, as reasonably deduced from the vote, was to discontinue the old road when the new highway should be legally laid out and built, without expense to the town. If any *78
one should, by appropriate proceedings, cause the new road to be legally laid out and should protect the town against the expense building it, the old way should thereupon be discontinued, not by some subsequent vote which might or might not be passed, but virtue of the vote already passed. The defendants' argument upon this branch of the case proceeds upon the theory that the discontinuance was to take effect if Mrs. Tracy would build a new thoroughfare at her own expense, and that the question of the public good in laying it out was deemed unimportant; that is, that the town voted to discontinue the old road without regard to the question of the public good, induced thereto simply by Mrs. Tracy's offer to pay for building a new road for which there was public necessity. But the case does not authorize that inference. The mere fact that some one is willing to pay the expense building a highway does not prove that the public good does not require it and the subsequent laying out of the way by the selectmen upon a petition to them must be presumed, in the absence of evidence to the contrary, to have been regular, involving necessarily a determination of the question of the public good. Proctor v. Andover,
Nor is it to be inferred, upon a reasonable construction of the vote, that it was understood that Mrs. Tracy was to build the road without conforming to and following the statutory requirements relating to the laying out and building of highways. The new highway within the contemplation of the voters was to be a highway legally laid out upon petition to the selectmen and constructed in the manner provided by law. Otherwise it would not take "the place of" the old one. This construction of the corporate purpose is further evidenced by the next vote, instructing the selectmen, the tribunal designated by statute (P. S., c. 67, s. 2), to lay out the proposed highway. While this vote may be deemed to be little more than advice to the selectmen, or in law a mere *79
expression of the wishes of the voters (State v. Newmarket,
As the case discloses no reason why the action of the town in the passage of the discontinuing vote was not authorized, and as the new road contemplated by the vote has been laid out by the selectmen upon petition and constructed without expense to the town, the pending application to the superior court for its consent to the discontinuance would seem to be proper and clearly within its jurisdiction. If there are other legal objections to the laying out of the new way, they may appear upon the hearing of the application; but in the present situation of the case, no valid legal objections of that character to the maintenance of the application are suggested.
The claim that the selectmen have no authority to maintain the petition in behalf of the town cannot be sustained. It is provided by statute (P. S., c. 43, s. 5) that the selectmen "shall manage the prudential affairs of the town." "The particular duties comprehended within the meaning of the phrase `prudential affairs' are not easily enumerated. . . . Undoubtedly, in the ordinary signification of the term, is intended the transaction of business on behalf of the town, requiring the exercise of discretion and prudence." Sumner v. Dalton,
There seems to be nothing to support the defence of lathes. The delay of the town in bringing the matter to the attention of the court does not appear to be unreasonable. No legal necessity is suggested why the application might not be made as well after the new road was laid out and built as before.
Whether the defendants, who it is said are taxpayers in New London, are properly parties to this proceeding, and whether in that capacity they are entitled to insist upon the objections above considered, are questions which have not been discussed by counsel and which are not decided. The opinion is based upon the assumption that the questions decided are properly raised and presented.
The superior court should proceed with the hearing upon the petition, in accordance with the views herein expressed.
Case discharged.
CHASE and BINGHAM, JJ., concurred. PARSONS, C. J., and YOUNG, J., were of the opinion that no tribunal except the town had jurisdiction to determine whether the condition in the vote of discontinuance had been performed, and did not agree to the conclusion that a finding of performance by some other tribunal, together with the conditional action of the town, was a valid discontinuance of the way. They therefore dissented from the result, although concurring in the other positions taken in the opinion. *81