Whittredge v. Concord

36 N.H. 530 | N.H. | 1858

Sawyer, J.

The notice issued by the commissioners, of the time and place appointed for the hearing, upon the question whether Pembroke should bear any portion of the expense, was addressed to the selectmen and town-clerk of that • town by name, and also by their official designation as such selectmen and town-clerk, and it expressly informed them that the selectmen, as such, might attend and be heard. This must have been understood, as it was clearly intended, as a notice to them in behalf and on account of the town, and not to them personally. As such, it was in fact a notice to the town, as required by the statute, though in the form of a notice addressed to the selectmen and town-clerk in their official capacity, as representing the town, for the purpose of receiving the notice, and as being the proper officers to receive it in behalf of the town. It certainly conveyed all the information which could have been derived from it if it had been addressed directly to the town, and was sufficient.

In the regular course of proceeding, the commissioners, before issuing notice to other towns than that in which the highway is to be laid out, are to make the preliminary inquiry whether, probably, a case will be made out for assessing some portion of the expense upon such other towns. In Webster v. Alton and New-Durham, 29 N. H. (9 Foster) 369, it was held that this was required by the statute. They may proceed to make this preliminary inquiry upon their own motion, or upon the motion of any town or party interested. When it is moved by a party, the town is not necessarily to be cited in. The commissioners, upon going into the preliminary inquiry, may become fully satisfied that there can be presented no probable ground for assessing such town. If, however, they should come to the conclusion that there is probable ground, then the notice is to issue, and they are to proceed, upon the return of notice, to the hearing, whether the other town is to be assessed. The preliminary inquiry is not, however, made by the statute a necessary proceeding to give the commissioners jurisdiction of the question. It is only required for the purpose of regulating the orderly course of proceeding, that the embarrassments and inconveniences may be avoided which must necessarily result from summoning in various towns in the vicinity, without its first appearing probable that there will be occasion for such a proceeding. It is not necessary, therefore, that the report should set forth that the commissioners made the preliminary inquiry. It is to be presumed they did so from the fact of giving the notice. The second objection was properly overruled.

The third ground of exception, that, from the estimated expense of the highway, and the amount assessed on Pembroke, considered in connection with the valuation of the two towns, it appears that this is not a case within the contemplation of the act; and the sixth, that the proceedings of the commissioners at the hearing, as shown by the affidavit of Fowler, were illegal, and show that the commissioners acted under a'hnisapprehension of the law, involve substantially the same considerations, and will be disposed of in connection, after the remaining exceptions have been considered.

The fourth exception, that, by the report, Pembroke is assessed in a definite sum, we understand to be founded upon the position that the statute requires the whole expense to be assigned to the towns in certain proportions, instead of assessing the town in a definite sum. The language of the act is, they — the commissioners — shall, in their report laying out the highway, apportion such part of the expenses as they shall deem just and reasonable to such town or towns, to be borne by them. The word apportion is obviously used in the sense of assigning or assessing, and the act means only that the commissioners shall determine and declare in their report how much of the expense — what sum towards and on account of it — shall be paid by the other town or towns. No sound reason can be perceived for making the assessment in the form of a given proportion of the whole expense. In most cases it would probably be inconvenient and embarrassing to make it in that mode. No objection can be perceived to making it in all cases in the form of a definite sum; and it necessarily is to be laid out upon the highway by the town in which it is situated. No other practical method can be adopted in the expenditure of the money, than that it should be under the direction of the proper officers of the town within which the highway is to be constructed. The report, therefore, properly directs that it be paid over to Concord.

The fifth ground of objection, that the assessment is not made in the report laying out the highway, but in a separate report, is not sustained by the facts. The report indeed consists of two distinct branches — the first comprising a return of the proceedings in laying out the highway, and the second of the proceedings in reference to the apportionment of the expense; but these together constitute the report laying out the highway; the latter proceedings but an incident to the laying out, and the whole being returned to the court at the same time as an entire transaction. The proceedings in apportioning the expense are necessarily, to some extent, distinct from and independent of those which have direct reference to the laying out. The laying out may be by one board, and the apportionment of the expense by another. Mitchell v. Holderness, 29 N. H. (9 Foster) 523. The apportionment of the expense must be held to be made in the report laying out the highway, within the meaning of the statute, when the reports upon the two branches of inquiry, whether made by the same or by different boards, are presented to the court concurrently, for their action upon them at the same time.

The remaining exceptions —* the third and sixth — require some consideration of the grounds upon which the statute is to be regarded as proceeding in authorizing the apportionment of the expense.

The third exception is based upon the ground that the report itself, considered in connection with the valuation of the two towns, contains evidence that the commissioners acted upon a misconstruction of the law, and the sixth, that the fact of their acting upon such misconstruction is shown by the testimony of Fowler. The misconstruction alleged in both cases is in reference to the meaning of the statute in the use of the words, “ excessively burdenedthe commissioners being authorized by the statute to make the apportionment only in case the town in which it is laid out would be excessively burdened by the whole expense, and the other town would be greatly benefited by the highway.

In Webster v. Alton et al., this provision of the statute came under consideration. It is there said that the statute was not intended to change the ordinary rule that every town shall make its own highways, but was designed to apply only to extraordinary cases. To justify the commissioners in charging a portion of the expense upon Pembroke, it must appear affirmatively that the burthen would be excessive upon Concord — so heavy as to exceed reasonable limits; such as, when added to their other necessary public burdens, would be extraordinary and oppressive.

It is not, however, to be inferred that the raising of $11,000, upon a valuation of between four and five millions, making a tax of only twenty-six cents on a hundred dollars of the taxable property of Concord, would not be thus excessively burdensome. When added to an already heavy taxation for other necessary purposes, it might be thus excessive, though made upon a much larger valuation, and increasing the taxation by a much smaller per cent. On the other hand, the raising of a much larger sum upon a smaller valuation might not be extraordinary and excessively reason of the comparative lightness of their other burthens. Nothing, therefore, results from the comparative valuation of the two towns, as tending to show that the commissioners entertained erroneous views as to the meaning of the law. The report sets forth that the commissioners were of opinion that Concord would be excessively burdened by the whole expense. This must be understood to mean precisely that excessive bur-then which the statute intends, unless it is made to appear that the commissioners meant something different. It is not made so to appear from the report itself, or from any facts of which the court can take notice, without evidence aliunde. Assuming that such evidence may be resorted to for the purpose of proving it, still the affidavit of Fowler, which is the only evidence produced, fails to show that the commissioners, in their final adjudication of the question, acted under a misapprehension of the law. The affidavit states the positions taken by the counsel for Concord at the hearing, and sets forth that, in accordance with these positions, no evidence was offered before their case was closed, and Pembroke was called on for their defence, to show that Concord would be excessively burdened ; that thereupon the counsel for Pembroke moved that that town be discharged, which was denied by the commissioners. But the affidavit does not set forth that there was evidence finally offered upon that point. It is rather to be inferred, from the statements of the affidavit, that evidence that Concord would be thus burdened was ultimately introduced, and that the point of the objection, arising upon the facts disclosed in ⅛⅜ affidavit, is that the commissioners held the town of Pembroke to answer and proceed to tbeir defence, when no evidence bad been offered showing that Concord would be excessively burdened, before they were put upon the defence. All that Í3 stated in the affidavit may be true, and still ample testimony have been introduced subsequently in the progress of the hearing. That the commissioners sustained the positions taken by the counsel for Concord, so far as to put Pembroke upon the defence, even if they erred in that view as the evidence stood when Pembroke was required to proceed, furnishes no ground of exception, if afterwards the evidence was introduced. By thus proceeding, the erroneous ruling, if it were one, was cured, and the exception waived. Thus understanding the facts stated in the affidavit, the fact is to be inferred, at least it is not negatived, that the proper evidence was afterwards supplied.

It is not intended to establish or recognize the doctrine that it is competent for the court of Common Pleas to revise and overrule the judgment of the commissioners upon the question whether the construction of the new highway will, or not, be excessively burdensome to the town. That there may be a case of mistake or error so palpable and flagrant as to warrant the court in setting aside the report on this ground, is possible, but nothing of that nature is presented by the evidence in this case.

All the exceptions having been properly overruled, the judgment of the court below, accepting the report,

Is affirmed.