Northern Railroad v. Enfield , 1876 N.H. LEXIS 126 ( 1876 )

FROM GRAFTON CIRCUIT COURT. It appears from the case, that two of the selectmen of Enfield, being disqualified to act, appointed two other men in their places. The statute — Gen. Stats., ch. 233, secs. 7 and 8 — provides that in case any of the selectmen are disqualified, those who remain may appoint substitutes; but it is only where all are disqualified that the disqualified persons may appoint. It is true that the statute says "those who are qualified to act," and in this case only one was so qualified; but by Gen. Stats., ch. 1, sec. 3, words importing the plural number may include singular. Exactly that which the statute requires was not done and exactly that which the statute does not require was done.

It is clear that the board which acted had no power to do anything, and their proceedings must be adjudged void. I do not find anything that has any tendency to show that the defendants waived any objection. This seems to be conclusive of the case, and the other questions become immaterial.

It may not be amiss, however, to remark, that a report of the commissioners against the laying out of a road, with judgment thereon, has never, to my knowledge, been held to be an estoppel, or conclusive against a new petition. If the judgment in such a case is be a bar to a further petition, it must be as the result of facts to be found by some tribunal empowered to find the facts, which this court in this class of cases, I believe, is not.

At the argument, a suggestion was made that the causes of appeal were not set out in the appeal; and ch. 63, sec. 12, Gen. Stats., was referred to, in which it is said that the commissioners shall consider and report in the matters in regard to which the appeal is taken, as set forth in the petition, and the suggestion was made that the petition should contain a specification of all the objections.

The sections from the General Statutes are founded on sec. 9, ch. 50, R. S., and on Laws of 1862, ch. 2,621 sec. 1, by the first of which provision is made for an appeal from award of damages, and by the last for an appeal from the laying out of the highway. The first of these sections provides for an award of damages, and the other for passing upon the question of laying out of the highway, and the amount of damages c.

The section in the General Statutes provides for a report by the commissioners in regard to the matters in reference to which the appeal is taken, which I suppose may be either the damages, or the laying out or both, and which would be set forth in the petition; but I do not think it requires a specification of particulars in either case.

The commissioners to revise the statutes, in their report, ch. 53, secs. 10, 11, 12, indicate by the letters in the margin that the "sense is not designed to be altered," which adds the authority or those able and earnest men in support of this construction. Underwood v. Bailey 54 N.H. 187.

LADD, J., and RAND, J., C. C., concurred.

Appellants' exceptions sustained.