51 A. 628 | N.H. | 1902
Payment for the services of county commissioners in the business of the county confided to them and in pauper matters is made from the county treasury. P. S., c. 27, s. 20; Laws 1897, c. 87, s. 1,.The statute (P. S., c. 69, s. 17) prescribes their fees for service upon road petitions, but contains no provision as to how or by whom the fees prescribed are to be paid. In the consideration of highway petitions referred to them by the court, the commissioners act not as executive officers of the county, but as a special tribunal — part of the judicial machinery of the state. The statute by which the office was created (Laws 1855, c. 1659, *205 s. 37) gave them for this service the same compensation that road commissioners then had, payable in the same way. The road commissioners, who were thus superseded by county commissioners when created, took the place of committees previously appointed by the court in each case to perform the same service. Laws 1840, c. 506; Laws 1830, c. 7; Laws 1829, c. 52, ss. 9, 12.
As to their compensation, the several bodies performing this duty, whether called "committees," "road commissioners," or "county commissioners," stand like referees, auditors, masters, committees to make partition, and other like agencies employed in judicial administration. They are to be paid by the parties requesting their services unless statutory provision has been made for their remuneration from the public treasury. The expense involved in their employment in the action before the court is part of the costs of the proceeding. Either party may pay the fees, and if successful, in the absence of contrary provision, may recover the amount paid as part of his taxable costs. Hoit v. Babcock,
In the case for which fees are claimed in this proceeding, the road was not laid. Although the petition was heard by the commissioners and a report filed by them, laying out the road and apportioning the expense of the hearing between the several towns *206
defending, nevertheless, after the coming in of the report the petitioners abandoned their case and the petition was dismissed. The reason for such action has no bearing upon the effect of the report. In the absence of an order of judgment upon the report according to its terms, the report, even if legally unimpeachable, established nothing, either as to the question of public urgency or the equitable division of the costs of the proceeding. "Facts are not established by the findings of referees, judges acting as triers of fact, or by the verdict of a jury, but by a judgment on the report, finding, or verdict." Petition of M. M. R. R.
After the report of the commissioners was set aside, the case stood as to final judgment as if no hearing had been had; a new hearing was necessary, the expense of which, as well as of the one which had been had, being costs of the proceeding. Howard v. Colchester,
The plaintiff, having rendered the service in good faith and being in no fault, is entitled to recover the compensation which the statute declares reasonable — his legal fees — of the parties requesting the service, although through no fault of his the service was of no avail to any one. Davis v. Bradford,
Bill dismissed.
All concurred.