Ball v. Westmoreland , 54 N.H. 103 ( 1873 )

Hibbard, J.

“ The court shall order notice to be given, in such

manner as they think fit, of any petition, complaint, libel, application, or motion in writing, and no judgment or decree shall be rendered thereon without compliance with such order.” Sec. 18, cli. 207, Gen. Stats. That the foregoing section is broad enough in its terms to embrace this petition is not denied, but it is contended on the part of the petitioners that this ease must be governed by the following provisions of cli. 63, Gen Stats.:

c< Section 1. Petitions for laying out or altering highways may be filed in the office of the clerk of the 'supreme court in the following cases : I. When the selectmen have neglected or refused to lay out or alter the highway. II. When it may pass over land not in any town. III. When it may pass over lands in two or more towns, one of which is in the county. IY. When, having been laid out by the selectmen, it is discontinued by the town in two years thereafter.

“ Sec. 2. When such petition is filed, the clerk shall issue an order of notice, with a copy of the petition, returnable to the next term of the court, and the petitioners shall cause a certified copy of the same to be given to or left at the places of abode of one of the selectmen and the town-clerk of each town through which such road may pass, twenty-eight days before the next term of said court.” If the section last cited embraces all petitions for laying out or altering highways, as the preceding section obviously does, it is plain that the notice given in this ease, requiring the petitionees to appear, not at the next, but during the same term of court, was erroneously issued. But the petitioners contend that the latter section applies only to petitions filed in vacation, leaving those filed in term-time to be governed by the general statute cited at the commencement of this opinion. We do not think it was the intention of the legislature to make such a distinction. It certainly seems improbable that, in a chapter entitled “ Powers of the supreme court in laying out highways,” being the only chapter (as ch. 63 is) which prescribes the powers of the court in such cases, it could have been intended to provide a method of giving notice only on petitions filed in vacation, leaving those filed in term-time to be governed by a general provision relating to petitions. The words “ when such petition is filed ” are equally applicable to petitions filed in term-time, and we think it would be an unreasonable construction to hold that they refer only to those filed in vacation. A petition which is filed in open court may be regarded as filed in the clerk’s office, within the meaning of sec. 1, — otherwise, we discover no authority for acting upon it after it is filed; and we are of the opinion that all petitions for laying out or altering highways are embraced within the terms of sec. 2, and that, whether they are filed in vacation or in term-time, the order of notice must be returnable to the next term.

We are confirmed in this view by a reference to the corresponding provisions of the statutes for which those sections are a substitute. By sec. 1, ch. 50, Rev. Stats., “ petitions relative to roads may be presented to the court of common pleas in term-time, or to the clerk in vacation,” in the same four classes of cases embraced in sec. 1, ch. 63, Gen. Stats., and, by sec. 2, ch. 50, Rev. Stats., “ upon the filing of such petitions with the clerk of the court in vacation or with the court in term-time, the clerk shall issue an order of notice with a copy of said petition returnable to the next term of the court,” etc. It was, therefore, at the time the General Statutes were enacted, expressly provided by the Revised Statutes then in force, that the order of notice on a petition for laying out or altering a highway should in all cases be “ returnable to the next term,” although the court, by virtue of sec. 20, ch. 186, Rev. Stats., then had the same general authority to determine what notice should be given upon petitions that it now has by virtue of sec. 18, ch. 207, Gen. Stats., on which the petitioners rely. That the commissioners who drafted the General Statutes understood the difference between secs. 1 and 2, ch. 50, Rev. Stats., and secs. 1 and 2, ch. 63, Gen. Stats., to be merely “ verbal,” appears from the marginal notes to the latter sections as contained in their report to the legislature.

This petition, having been presented in term-time, may be considered filed in the clerk’s office. Leave will be given to take a new order of notice returnable to the next term, if the petitioners desire it. Otherwise the motion to dismiss must prevail.

jException sustained.