Britton's Petition

19 N.H. 445

• Court: Superior Court of New Hampshire
• Decided: July 15, 1849
• Status: Published

Opinion

Woods, J.

By the seventh section of the fiftieth chapter of the Revised Statutes, it is provided, that “ any report of the road commissioners may, for good cause, be recommitted to such road commissioners,” &c., and by the eighth section, 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 the present case, the commissioners made a report at the term next ensuing the one at which the petition was referred to them, which report the court recommitted to therm, although their term of office had expired, upon the ground that the proceedings in the matter had been “ commenced,” or were “ pending before them ” during their actual term of office, and that no good cause was shown for referring the proceedings to the road commissioners for the time being. The question is, whether in fact such proceedings were commenced or pending before them at the time of the order of recommitment. The case finds that the petition was regularly referred to them during their term of office, and that they proceeded regularly to notify, to the parties entitled to notice, a time and place to enter upon the hearing. This surely was a commencement of proceedings, and there seems no very clear ground for denying that such commencement was all that the language of the statute requires, to establish in the board the jurisdiction of the case. Such proceedings are liable to casualties, which may defeat what may have been done, and render it necessary for the commissioners, to commence anew. A report may be recommitted for the very reason that some informality may have intervened to render a fresh action on the part of the board indispensable to reintegrate the proceeding. It seems to us that so far from such an occurrence having the effect to oust the board of its jurisdiction, it is exactly one of the causes which called for that provision of the statute which enables the old board to complete its unfinished business. And we think that there is no ground for holding that proceedings are no longer pending, after the occurrence of an error or informality that might even make the report inoperative as the foundation of a judgment. Reports, indeed, are often recommitted for the very purpose of supplying some omission that would otherwise vitiate the proceeding wholly or in part; and there is nothing to distinguish this case from others in that respect, except, perhaps, that the road commissioners had been prevented by some occurrence not explained, from proceeding so far in the business as in some cases. But we cannot impute an error to the court below in adjudging that proceedings upon the petition were “commenced or pending” before the commissioners, within the year which constituted their term of office.

It is therefore unnecessary to determine whether one of the commissioners was legally competent to adjourn the hearing, or whether the irregularity, if such it was, was cured by the'appearance of parties at the adjourned hearing, under the circumstances described by the case. Upon the second recommitment, the notices were given afresh, and no interruption or irregularity appears after that to have intervened. The exceptions must therefore be overruled and the report accepted.

Report accepted.