Mitchell v. Holderness , 34 N.H. 209 ( 1856 )

Eastman, J.

The ruling in this case was made at the January term of the Common Pleas, 1856, before the judiciary act of 1855 had taken full effect by the election of county commissioners, and its correctness must therefore be tested by the law as it then stood.

By sec. 1, chap. 20, Rev. Stat., provision is made for the choice of three road commissioners annually for each county, and also for the choice of other county officers. Comp. Stat., chap. 21, sec. 1.

The tenth section of the same chapter provides that any such officer may be removed from office by the justices of the Court of Common Pleas of the county, for official misconduct, and the office declared vacant. And that if any person chosen or appointed to either of said offices declines to accept, removes from the county, resigns, dies, or becomes insane, said justices shall declare the office vacant. And section eleven provides, that in any case of vacancy said justices shall appoint a commissioner, who shall be sworn, and shall perform all the duties, be subject to all the requirements and liabilities, and be entitled to all the privileges and emoluments of such vacant office.

It is also provided by sec. 8, chap. 50, Rev. Stat., that the road commissioners shall continue in office, as to all proceedings commenced or pending before them, until the same shall be completed, unless the court, for good cause shown, shall refer the same to the road commissioners for the time being.

In Palmer v. Conway, 2 Foster 144, it was held that where a vacancy exists in a board of road commissioners, there is no authority in the remaining members to discharge the duties entrusted to the board. That decision was placed upon the ground that there was no necessity for holding that two commissioners might act in case of a vacancy, as the various statutes provided for the filling of vacancies in all cases. Woods, J., who delivered the opinion of the court in that case, after examining the several statutes upon the subject, says that ample provision is made for filling any and all vacancies that may occur during the pendency of any proceeding before any board.

So far as the constitution of the board of road commissioners is to be regarded, that case was parallel with the present; both boards being composed of one commissioner, elected by the people, and one appointed by the court. And although the point there decided was unlike the one presented here, still the decision may be regarded as an authority for the appointment of a commissioner to fill the vacancy, agreeably to the motion of the petitioners.

This petition was regularly referred to the board of road commissioners in 1852. They obtained jurisdiction of the case and proceeded to act; but before completing their proceedings, one of their number became interested, and another was appointed to take his place. This it has been decided could be legally done. Mitchell v. Holderness, 9 Foster 523; and that board, under the section of the statute which we have cited, were to continue in office till the proceedings commenced or pending before them should be completed.

Before, however, the board as thus constituted had completed their proceedings in the case, Mr. Lowe, one of the board originally elected, removed from the county and the State ; and upon the motion of the petitioners that the office be declared vacant and a substitute appointed, the court below refused to proceed and make the appointment. And we think the ruling was wrong. The two remaining commissioners were legally authorized to act in the premises in connection with the other before his removal, as much so as if they had both been chosen at an annual election. The appointment of the third by the court was made in pursuance of the statute, and his commission was as valid to the extent to which it went as that of his associates. And Mr. Lowe, having removed from the State while unfinished business was pending before the board, it became the duty of the Common Pleas to pronounce the office vacant, and to fill the vacancy under the statute.

Since, however, that ruling was made, a board of county commissioners have been chosen under the act of 1855, to whom we think this case should be referred. That act would seem to contemplate that all matters before the court, relating to highways, which require a reference, shall be referred to the county commissioners, unless there shall be found some provision of the statute otherwise controlling the reference. And it was held at the recent session in Rockingham that a report of road commissioners to which valid exceptions were taken, should be committed to the county commissioners, instead of being recommitted to the former board.

Should an appointment now be made so as to fill up the board of 1852, only one of the number would have any knowledge of the case, and a full investigation of the merits would necessarily have to be had. We do not understand that because a board of road commissioners have decided to lay out a road, and then proceed to investigate the question whether adjoining towns shall defray a part of the expense, that they may not on further investigation reconsider their original intention to lay the road. The statute contemplates but one report and judgment in establishing a highway ; and until that report is made to the court for their action, the commissioners may change it if they think proper. Until the report is made and accepted, and judgment entered thereon, the road is not laid out so as to become a highway established by law.

In the present case the court have never accepted any report. The board of 1852 proceeded to investigate the subject so far as to decide that in their judgment the road should be laid out; but on further consideration that decision might have been changed by them before making their report. This it would have been perfectly competent for them to do; and to whatever board the case may now be referred, the whole subject must of necessity be under their control.

The ruling of the court was wrong, but the case must be committed to the county commissioners.