Wentworth v. Farmington , 51 N.H. 128 ( 1871 )

Sargent, J.

The position that persons who acted de facto, as commissioners in this proceeding, must be taken to have been such de jure, and that their qualifications cannot be inquired into in this case, is not well taken.. When called on to accept a report of commissioners, or of any other officer to whom the court has sent a question of fact to be tried, it seems proper that the court should examine to see if such triers of the fact were properly qualified, and acted in the discharge of their duties according to law; and if not, to set aside or recommit their report, provided any party is found to be in a position to take exception..

This board, after its appointment, was to perform the duties of county commissioners, so far as that petition was concerned. It was only as county commissioners that they had any authority to lay out this or any other highway, except as selectmen of a town. We know of no law authorizing the court to appoint referees to lay out a highway, or authorizing referees to perform, in any case, the duties of county commissioners. The commission issued to them as county commissioners ; and, so far.as that case was concerned, they were the commissioners.

No question is raised as to the manner of their appointment. They were appointed upon the defendants’ motion, and all parties had full knowledge of the manner of and of the reasons for their appointment, and made no objections at the time ; and they do not now object on that ground, nor could they be heard to do so if they would. Johnston v. Wilson, 2 N. H. 202-206; Horn v. Whittier, 6 N. H. 93. But the objection is, that these.commissioners, after their appointment, were not duly qualified by taking the necessary oaths of allegiance and of office. To this objection the answer is made, that these men were not public officers, but were like referees who were assigned to a particular duty in a particular case, and need not be sworn. But, as we have already seen, this answer is not satisfactory. If it was necessary in any case that the commissioners should be sworn, then why not in this case ? The parties had the same right to a thorough examination, a careful investigation, and correct decision in this case as in any other. So far as this case is concerned, this board must be regarded as county commissioners, as public officers, who should, by the requirements of the constitution, not only have taken, but subscribed the oath of office and the oath of allegiance in the form prescribed in the constitution.'

In this case the qualifications of two of the commissioners were de-' fective in this, that it does not appear that they either took or subscribed the oath of allegiance in any form, and that the oath of office which they took was not subscribed by them, nor was it in the required form. Gen. Stats., ch. 23, secs. 1 and 2 ; Const. of N. H., part 2, art. 84; Gen. Stats., ch. 17, sec. 4.

But it is said that commissioners appointed to fill vacancies are not required by law to take and subscribe the oaths required by the constitution ; and from this it is argued that such appointees are not public officers within the meaning of the constitution. Chapter 62, sec. 1, Gen. Stats., provides that the chairman of the board shall appoint a time and place of hearing on each petition, and shall give the proper ■ notices. Section 2 provides that “ if any one of the commissioners is unable to attend at said time and place, the commissioners present may, by writing under their hands, appoint a person who has served in said office to act in his stead.” Section 3 provides that “ the person so ' appointed shall be sworn to act faithfully and impartially in the proceedings upon the petition, and shall have the powers and perform the duties of a'county commissioner in relation thereto.” The last part of sec. 3 makes him a county commissioner for that case, and, of course, a public officer,pro hao vice; and the only reason why any different form of oath is allowed in that case must be, simply, that no man can be appointed to that place by the other two commissioners, except it be a man “ who has served in said office,” — that is, a person who has been elected, and duly qualified by taking and subscribing the necessary constitutional oaths; in addition to which, this statute prescribes another for that particular case.

To suppose that the statute intended to make the oath there specified sufficient, in a case where both the constitutional oaths had not been taken and subscribed before, would be to suppose that the legislature which made the law did not know of the constitutional provision, or intended to make a statute in direct violation of it, — neither of which can be supposed. This was the form of the oath administered in this case. But here the persons appointed as commissioners had not served in said office previously, and had not taken and subscribed the constitutional oaths, so far as appears in this case. And the taking of that oath is no compliance with the constitutional requirement.

By the provisions of sec. 6, ch. 63, Gen. Stats., any justice of this court may appoint a commissioner in place of one who is interested, upon the petition of a commissioner. In such case, the one appointed becomes a county commissioner for that case, — a public officer, who must take the oaths which the constitution requires before he will be qualified to act. So, in the case before us, the two commissioners, Thompson and Roberts, were not duly qualified to act; and this is a valid objection to tlieir action, and to their report, if there are any parties here who can now insist upon this objection.

This leads us to the last point in the case, viz., whether the parties who now object to the report are in a position to take advantage of this objection, or whether they have waived that right by not making this objection earlier; for after verdict it is too late to take exceptions that could have been taken earlier, because if taken before they might have been obviated. Haynes v. Thom, 28 N. H. 386; Frost v. Martin, 29 N. H. 306; Knowles v. Dow, 22 N. H. 387-411; Watson v. Walker, 23 N. H. 471; State v. Flanders, 38 N. H. 324.

Any objection to jurors, or other officers selected to try facts, if known to the party or his counsel at the trial, must be made before verdict, or they will be held to be waived. Rollins v. Ames, 2 N. H. 349; State v. Daniels, 44 N. H. 385; Farmer v. Goodwin, cited in same. And in such cases it must be made to appear affirmatively that neither the party objecting, nor his counsel, had any knowledge of the existence of the fact or defect objected to, before verdict, or the final report upon the facts in the case. See same authorities. Now in this case we have not been furnished with any evidence that either the town authorities, or agent, or their counsel, did not, some or all of them, know of the existence of the defect now objected to at the time of the trial; and upon the authorities cited, that alone would be a sufficient ground for holding that the objection was waived. For aught that appears, the town authorities and agents and counsel of Farmington may all have had full knowledge of all the facts in the case as they are now shown to exist, and yet did not object.

But we do not need to rest the cause upon that point alone. It was held, in Goodwin v. Milton, 25 N. H. 458, 470, that the same principles were to be applied in case of road commissioners, now county commissioners, as in case of jurors, and that when a person had been appointed to fill a vacancy in a board of commissioners, who had taken the oath of office but had not taken that of allegiance, it was “ too late to take an exception on that account, after the coming in of the report, if it shall appear that the party excepting knew, before the hearing, that the oath of allegiance had not been taken, or if there were sufficient facts before him to put him on inquiry.” In other words, the party is to be charged with notice and knowledge of whatever he might reasonably have learned, upon making reasonable inquiry, after his attention had been called to the subject. In that case the oath of office was taken and subscribed before the hearing commenced, and was read in the hearing of the party excepting, and nothing was said about any oath of allegiance. Held, that this was sufficient to have put the party upon inquiry, to ascertain whether the oath had been taken, and if not, to have raised the objection, when it could have been removed.

Keeping in view the leading points of that case as to notice, and also that the same principles are to be applied in case of commissioners as in case of jurors, let us examine some other cases bearing upon this point. Where the ground of exception to a juror appeared upon the venires which had been returned to and were on file in the office of the clerk of the court, and had become a part of the records of the court, there it was held that the existence of such evidence, and the knowledge of its existence by all parties and their counsel, was equivalent to notice ; that this was enough to put the party upon inquiry, and that if he made the proper inquiry he could not help finding the defect; and that unless he did so, and made the objection before verdict, it came too late. State v. Hascall, 6 N. H. 352; Bodge v. Foss, 39 N. H. 406; Pittsfield v. Barnstead, 40 N. H. 477.

But the cases go further than this even, for in Wilcox v. School District, 26 N. H. 303, it is held that where the grounds of objection appear on the records of'the town from which the juror is drawn, the objection must be taken before verdict, or be held to be waived, the fact of the existence of such record being held equivalent to notice to the party of what it contains.

Now the statute requires that every justice of the peace shall keep a record of every such oath by him administered (which includes all State and county officers), in a book to be kept for that purpose, and shall make return to the office of the secretary of State of every oath by him administered to any officer appointed by the governor and council, and to the office of the clerk of the supreme court of every oath administered by him to any county officer, within one month. Gen. Stats., ch. 17, sec. 8.

Here is a provision for having all oaths administered to the county commissioners filed with the clerk of the court, as much as there is for having the venires for jurors returned to the same place. When this is done, the parties have the same means of ascertaining the qualifications of commissioners, so far as the taking of the required oaths are concerned, as they have in case of jurors, by an examination of the returns on the venires, or the records of the town clerks in each town. In the case before us, the case expressly finds that these commissioners, Thompson and Roberts, had taken a certain oath, which had been returned, or a certificate of the same had been filed in the clerk’s office before entering upon the duties of their appointment. Here, then, was the evidence on record in the proper place, before they commenced the discharge of their duties, and this was notice to every one of what oaths they had taken and what they had not; at least,.it was sufficient to put every party upon inquiry as to everything which was or was not contained in the oath which had been taken. Goodwin v. Milton, supra.

It was notice that the oath which they did take was not such as the constitution prescribed as the oath of office, and that it was not subscribed by the commissioners as it should have been, and that no oath of allegiance had been taken, or subscribed, at least, in that case. The same reason exists for holding that this public record of the oath, at the place where the law requires it to be kept, shall operate as a notice to all parties, in case of commissioners as well as in case of jurors, and that they should be held to examine these records seasonably, so as to make their objections, if any are found to exist, so early that the same may be removed or obviated before the bearing, or the coming in of the report. These cases already cited dispose of this case; but see Amherst v. Hadley, 1 Pick. 38-42, and cases cited; Walker v. Green, 3 Greenl. 215; Fellow’s case, 5 Greenl. 333; Hill v. Yates, 12 East 229; Rex v. Hunt, 4 B. & Ald. 430; Queen v. Hepburn, 7 Cranch. 290; and Burnham v. Goffstown, 50 N. H. 560.

These objections come too late, and must be overruled, and there must be Judgment on the report.