State v. Landaff

22 N.H. 588

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Bell, J.

The road had been laid out more than eighteen months before the indictment was found, and the town had refused, in town meeting, to raise money to build it, and had done nothing toward that purpose. The delay was unreasonable, the neglect of duty by the town manifest, and the grand jury were fully warranted, upon the facts stated in the case, in finding the bill, as the State’s counsel is, in prosecuting it. The application for a discontinuance furnishes no defence. It might be a reason for delay. Ending as the first application did in an adverse report, it merely shows, that .the neglect to build the road was justified by no good reason. The second application, after a discontinuance has been once refused, could hardly be regarded as furnishing a reason even for delay.

The road commissioners, upon the reference to them of the petition for a discontinuance, had no authority to consider or decide any question as to the time within which the road ought to be built, and their opinion of course was extrajudicial, and not binding upon any body. The acceptance of their report did not imply that the court had adopted that opinion, or were even aware that they had volunteered an opinion upon the subject. As the opinion of highly respectable citizens, whose duty upon the reference of the petition had led them to examine in relation to the road, it was deserving of consideration upon an application to the counsel for the State for delay, or upon a motion to the Court, not for a postponement of a trial, for there seems nothing to try, but for a delay of sentence, until it shall be more clearly seen what fine should be imposed; but the liability of the town is not in any way affected by it.