State v. Newmarket

The statute of February 8, 1791, prescribes that “when there shall be occasion for any new highways or private roads to be laid out,” &c., “the selectmen are empowered, on application made to them, if they see cause, to lay out the same.”

This general power is the same that was given to the selectmen by the province law, passed 5th Geo. I., including also an undefined portion of that which, by the same statute, was vested in the quarter-sessions, to be exercised by this court upon application made by the selectmen. Prov. Laws 158.

The occasion which enables the selectmen to exercise this power, is the application to be made to them for that purpose. Without such application it has been held that the power cannot be legally exerted. Pritchard v. Atkinson, 3 N. H. 335.

It has also been held that, the power having been called into action by the appropriate application, must be exercised for purposes of public and private convenience and accommodation, and that the grounds upon which they proceed in exercising it are liable to be inquired into judicially. Turnpike v. Champney, 2 N. H. 201.

It has also been held that courts, in the laying of highways, ought to act upon a conviction of what the public convenience and necessity require; and that if it appear that they have laid out a road for any other causes, or have acted upon other inducements, besides a sense of the public convenience and necessity, their proceedings may be avoided. Commonwealth v. Cambridge, 7 Mass. 166; Commonwealth v. Sawin, 2 Pick. 547; Dudley v. Cilley, 5 N. H. 558. In the cases last cited, it appeared that the courts had been influenced by offers made by parties in interest, to contribute money to lighten the expense of the necessary land damages to be paid as incident to the establishing of the road.

¥e think that where selectmen exercise the power of laying a road, they are required, like courts in. the exercise of like powers, to proceed upon their own convictions of what the public good and convenience require, and that their doings are subject to a scrutiny as strict, at least, as that which has been assumed in regard to other tribunals, whether courts or committees, charged with this judicial function; and it makes no difference whether the inquisition be made collaterally, as in the ease of selectmen, or by certiorari, as in other eases. 3 Qr. 438.

Where the record of the proceedings of the selectmen discloses no aberration of the nature referred to, and there is no distinct proof that in the discharge of their functions they have been actually influenced by considerations other than those which the law has indicated for their guide, a presumption will not be allowed against their acts, from the mere proof that illegal inducements were urged upon their notice. Smith v. Conway, Ossipee, December term, 1844.

But where it appears, by the record or otherwise, that the selectmen have laid out a road, not because, in their own judgment, the public convenience required it, but because the measure had been urged and required by another body, having no right to dictate in the matter, we should abandon the rules heretofore pursued by this court and others, if we avoided an inquiry into the legality of their acts.

In the present case, it appears that the road was laid out in pursuance of the instructions of the town, settled at a town meeting, regularly called for the purpose of considering whether the town would so instruct their selectmen. The warrant and the vote would of themselves constitute no valid objection to the doings of the selectmen, as has been intimated. But by the return it appears that they laid the road pursuant to the instructions. They almost in terms recognize themselves to be the mere' agents of the town in the act, and the act appears, upon a fair view of the whole proceedings, to be that of the town of New-market.

But whether it be necessary or not to place such a construction upon the proceedings as to impute the entire act to the town, it is impossible so to read the record that the doings of the selectmen shall appear to be of that judicial nature that the law exacts, or that influences wholly alien to the considerations that are regarded as legitimate, shall not appear to have caused the road to be laid.

The conclusion, therefore is — there being no evidence except that which the record presents — that the State has failed to prove the existence of a highway that the defendant town is obliged to keep in repair. There must, according to the arrangement, be