29 N.H. 369 | Superior Court of New Hampshire | 1854
The disposition of this case depends upon the construction and constitutionality of the first section of the act of July 8th, 1850; Pamphlet Laws, ch. 958, or Comp. Stat. ch. 55. »
That section is as follows: “ Whenever, upon any petition referred to them, the road commissioners for any county or counties in this State shall be of opinion that the road prayed for, or any portion thereof, is demanded for'the public accommodation, and shall lay out the same, if in their ‘opinion the town or towns through which the same passes would be excessively burdened by defraying the whole expenses of constructing the same, said commissioners shall make examination of all the circumstances relating to such
The other sections of the act provide, in substance, that the towns in the vicinity which are required by the commissioners to defray a part of the expense of making the . road, shall be liable for neglecting to comply with the requirements, in the same way and manner as the towns through which the highway passes are liable for neglecting to build the same ; and that any town may raise money by taxation for the purpose of paying the proportion of the expense of laying out and building any road in any other town, ordered by the road commissioners to be paid by such town.
And the costs of laying out and of widening and straightening highways from town to town, or through land not in any town, were and still are to be paid by the county. Eev. Stat. ch. 52, § 9.
Prior to this act, also, the provisions in regard to notice were, that the petitioners for the road, the land owners over whose land the road should be laid, and the selectmen of the towns through which the road was to pass, were to be notified of the time and place of the hearing. Eev. Btat. ch. 49, §§ 2 to 6 inclusive; also ch. 51, § 2.
No provision is to he found in the statutes relating to the laying out of highways, which requires the county to he notified under any circumstances.
Under the general provisions of the law, in ordinary eases, where no assistance from adjoining towns is expected, the road commissioners, upon a petition being referred to them, after giving notice to all parties required to be notified, proceed to examine the route and decide upon the public necessity for the road. If in their opinion the public good requires the road to be made, they lay it out, accurately describing it; and then assess the damages to the owners of land taken for the road, and estimate the expense of making the same.
But under the act of 1850, the proper practice and the • requirement of the law appears to us to be this. The commissioners first give notice to the towns through which the -
In this investigation which the commissioners make prior to giving notice to the towns in the vicinity, they should proceed so far as to see that it is a case proper for further examination, and for notice to other towns. But it is not till after the hearing, upon notice, that the commissioners decide whether the towns supposed to be benefitted shall
The statute appears intended to apply only to extraordinary cases, where the towns through which the road is to pass will be excessively burdened, and others in the vicinity greatly benefitted. It is not intended to change the ordinary rule that every town shall make its own highways; nor to alter the law designating the parties to be notified on original applications, being those who are named in the petitions for the roads. It is not till after the commissioners have decided that the public good demands the road to be made, and after they have come to the conclusion that the towns through which it is to pass will probably be excessively burdened and others greatly benefitted, that the question arises, what part, if any, the towns supposed to be benefitted shall contribute; and the statute contemplates no notice to the towns in the vicinity until that time. It is only after the commissioners have gone into some investigation of the matter, that it can be known to them whether the burdens will probably be excessive, and likewise whether other towns are to be benefitted, and if so, what ones. And it is only then that they can know whether the case is one requiring further proceedings, and upon what towns notice shall be served.
It is certainly desirable to permit those towns to be beard on the question of laying out a road, which will have to contribute to the expense of its construction, and where it is manifest that the adjoining towns will eventually have to share a part of the expense under the provisions of this act, the better practice, no doubt, would be to have them included in the original application and petition for the road. But in going beyond the towns through which the road is to pass, unless it is quite manifest that others in the vicinity should share in the burden of its construction, there is an
But without dwelling longer upon the matter, we are satisfied that by a proper construction of the statute, the towns through which the road does not pass, are not necessarily to be notified until after the commissioners have decided to lay out the road, and have examined in a preliminary manner the question of the burden of making the road, and the benefit that may arise to adjoining towns from its construction.
A town in the vicinity cannot be charged with a portion of the expense of constructing the road until after it has been notified and heard, and it is upon that question that the statute contemplates that it shall be heard. In laying out the road, the public good and accommodation is the only consideration that is to govern the commissioners; and whether it shall be laid out or not is to be decided regardless of the question upon whom the burden of making the road is to fall. It is no doubt true that the commissioners, in laying the highway, and in the preliminary examination which they may make as to the ability of the towns through which the road is to pass, and the benefits that may accrue to towns in the vicinity, must receive impressions as to the liability of the latter ; and such the statute contemplates;
Such being our opinion of the construction to be put upon the act of 1850, the four first exceptions taken to the acceptance of the report are, of course, overruled. We would remark, also, in regard to the second, third and fourth exceptions, that they do not appear to be well founded in fact. The commissioners state in their report that, after the report was recommitted to them upon the application of Alton and New Durham, to charge Gilmanton and Barnstead with a part of the expense of constructing the road, they gave due notice to all of the several towns, naming them, and to the petitioners, before proceeding to the inquiry in regard to the ability of the towns of Alton and New Durham to bear the expense. Barnstead, then, was notified of both the hearings after the recommitment of the report, and might have been present had they seeo fit.
The fifth exception is, that the commissioners proceeded to the hearing, notwithstanding the objections filed by tha town of Barnstead. The first of these objections was that the town was not notified and heard as to the laying out of the highway. It is the same as the first exception taken to the acceptance of the report, and is overruled for the same reason.
The second objection was that the report was recommitted to the commissioners by order of the court, to notify and hear the towns of Barnstead and Gilmanton; and to proceed to a hearing without notice to both of the towns was a non-compliance with the order of court, and therefore ¡illegal. It appears by the case that the proceedings against Barnstead and Gilmanton were upon motion and petition
The last exception is, that the statute by which it is attempted to charge the town of Barnstead with a part of the expense is unconstitutional.
It will not be questioned that the legislature have the power to pass acts by which the land of individuals may be taken to make public highways, and by which taxes may be assessed upon the inhabitants of the towns through which the highways pass, to pay for the land so taken, and the making of the roads. This has always been done, as is now substantially provided in chapter thirty-one of the Revised Statutes. The property thus taken, whether for the highways themselves or the making of them, is for the public use and benefit, and the acts done are by the authority of the legislature. Bill of Rights, §§ 12, 28. Upon what principle is it that the towns through which the highways pass are required to make them, and that taxes are assessed therefor? Evidentlyuponthegroundthatthetown, as atown, is to be benefitted by the road. No doubt there may be individuals in every town concerning whom it would be difficult to discover wherein they are benefitted by some’roads made therein. Still it would be utterly impracticable to draw the
It is upon the same principle, that of benefit and advantage to the publie in the counties, that the legislature have seen fit to authorize the court of common pleas to order a part of the expense of making and repairing highways to be paid by the county, whenever they may judge the expense to be unjustly burdensome to the towns. Rev. Stat. eh. 52, § 8; also, ch. 55, §§ 18, 19.
By the first section of the act of 1850, under which Barn-stead is sought to be charged, a town can only be required to contribute to the construction of the road, when the town, as a town, is to be greatly benefitted. It is fora public use and benefit that the money is to be taken, and it is by the authority of the legislature; and the objection that it is unconstitutionally taken would seem to apply to most of our laws in regard to highways as well as to this.
We have given to this case more than ordinary consideration. The important question involved in it is this; must the towns through which the road does not pass, but which may possibly be charged with a portion of the expense under this statute, be made parties to the original and primary petition to lay out the road ? And we think that the specific requirement of the act is too clear upon the question to authorize us to say that they must be so made. The language appears to be too explicit to admit of doubt. And the only way to avoid the force of the statute is to refuse to carry it into effect, because it does not provide for seasonable and due notice. But is this really so ? Are not the towns to be notified and heard upon the particular question that is to affect their interests ? We have endeavored to show that they are; and that it is after this hearing and notice, and upon the evidence then presented, that the decision is made, for or against them. And in the present case the commissioners have expressly reported that in coming to the conclusion to charge Barnstead, they relied solely upon the
We do not propose to enter into any discussion as to the propriety of the provisions of the act of 1850. We do not regard it as falling within our particular province so to do. It occurs to us, however, that the act is not more open to condemnation than the statutes to which we have referred, making counties liable to contribute to the building and repairing highways where they have had no notice whatever upon their being laid out, nor any voice upon that question.
There is no doubt of the great fundamental principle, that parties shall be heard before judgment shall be passed against them; and we trust never to trespass upon it. But when the legislature have fixed the particular time and manner of giving notice to parties, it is not for us to set aside the statute, unless it is clearly unconstitutional.
• There is no doubt, either, that road commissioners, who are to decide upon questions that legally come before them, should be as unbiassed and free from any previous adjudication of the question, as the circumstances and the nature of their duties will permit. But they are an independent tribunal, acting between the petitioners and the towns ; and although'they may, to some extent, form opinions upon the question of the liability of adjoining towns, and are in some instances necessarily obliged to, so as to know what towns to notify, yet these impressions do not render them incompetent to act upon the main question, which is afterwards to be fully considered and decided by them. In such cases every judicious man will keep his mind open till the final hearing upon the merits of the question.
Upon the whole, we do not regard this act as unconstitu
Judgment entered on the report