Attorney Gen. v. Littlefield

• Court: New Hampshire Supreme Court
• Writing for the Court: WALKER, J.
• Citation: Attorney Gen. v. Littlefield, 78 N.H. 185, 98 A. 38 (N.H. 1916)
• Decision Date: 06 June 1916
• Parties: ATTORNEY GENERAL v. LITTLEFIELD et al.

98 A. 38

ATTORNEY GENERAL

v. LITTLEFIELD et al.

Supreme Court of New Hampshire. Merrimack.

June 6, 1916.

Transferred from Superior Court, Merrimack County; Branch, Judge.

Petition for writ of mandamus by the Attorney General against James A. Littlefield and others, selectmen of Danbury. Case referred to a master, and, on hearing of report, order made commanding defendants to establish boundaries as set forth in the relator's petition, motion that petition be dismissed denied, and defendants except, and cause transferred from the superior court. Exceptions overruled, and case discharged.

Petition for a writ of mandamus against the defendants as the selectmen of Danbury, praying that they be commanded to establish boundaries for a village district in Danbury under chapter 53 of the Public Statutes. The case was referred to a master, who found the following facts: The relators, some time previous to April 16, 1915, presented a petition to the selectmen for the laying out of a village district, and after their report thereon, at a legal meeting of the voters living in the proposed district held on the above date, "the proposition" was defeated. In May, 1915, the relators filed another petition with the selectmen for fixing the boundaries of a village district, which was somewhat different from the former petition, and the defendants made a return, including in the layout much land not reasonably adapted to, or useful for, a village district. Each of them expressed views hostile to the proposition, and evinced a purpose of including so much territory within the boundaries that the voters of the district would not accept the layout. At the hearing upon the master's report the court found "that the said defendants have neglected and refused to perform in good faith their duties as selectmen of the town of Danbury in accordance with the provisions of chapter 53, § 1, of the Public Statutes," and the court made an order, commanding the defendants to establish boundaries as set forth in the relators' petition to them. At the hearing the defendants moved that the petition for a mandamus be dismissed. The court denied the motion, and the defendants excepted. They also excepted to the order of the court.

Stevens, Couch & Stevens, of Concord, for plaintiff. Martin & Howe, of Concord, for defendants.

WALKER, J. It is claimed by the defendants that at the meeting of the citizens resident in the proposed district held in April, 1915, the vote against "the proposition" amounts to a Judgment, and is a bar to any action by the selectmen upon the last petition. The argument is that the petitioners, having failed in getting an affirmative vote for the establishment of the district in the first instance, are bound by that vote, and cannot renew the application and have a second layout by the selectmen submitted to the voters of the proposed district. The statute under which these proceedings were brought provides that:

"Upon petition of ten or more legal voters, inhabitants of any village situate in one or more towns, the selectmen of such town or towns shall fix, by suitable boundaries, a district including the village and such adjacent parts of the town or towns as may seem to them convenient, for any or either of the following purposes: The extinguishment of fires, the lighting or sprinkling of streets, the planting and caring for shade and ornamental trees, the supply of water for domestic and fire purposes, the construction and maintenance of sidewalks and main drains or common sewers, and the appointing and employing of watchmen and police officers." P. S. c. 53, § 1.

Section 2 provides that:

"Such selectmen shall also forthwith call a meeting of the legal voters residing in the district to see if they will vote to establish the district, and if so to choose necessary officers therefor."

It does not appear in terms what the report of the selectmen upon the first petition was, nor is it clear what "the proposition" was that was defeated at the district meeting. It may be assumed, however, that the vote was against the establishment of a district for any purpose as laid out by the selectmen. But it was not also a vote against having a district laid out with other boundaries. It was not a vote against having or establishing a district differently laid out. The voters had no power to vote upon the question of the general feasibility of a precinct system in Danbury. The district they were authorized to vote for or against was simply the one the extent of which was defined in the selectmen's report. It is clear therefore, if the doctrine of res adjudicata is germane to the present inquiry, a proposition of some doubt (Strafford's Petition, 14 N. H. 30; Bath's Petition, 22 N. H. 576, 580; Howard's Petition, 28 N. H. 157; Boscawen's Petition, 33 N. H. 421), that the first vote is not a bar to the subsequent proceedings for the establishment of a village district, not identical with the first layout of the selectmen. If it is a matter within the discretion of the court (Whitcher v. Landaff, 48 N. H. 153), its refusal to dismiss the petition upon the defendants' motion is a finding that, under the circumstances, the present petition ought to be heard, and consequently that the second application to the selectmen was properly made. At most their layout was only a preliminary, though necessary, step to final action by the voters. It possesses few, if any, of the essential elements of a judgment.

The defendants insist that as a matter of law they had no jurisdiction to act, because the relators did not specify in their petition the particular purposes for which a village district was desired, and that a specification of "any or either" of the purposes mentioned in the statute is too indefinite to confer jurisdiction on the selectmen to proceed with the layout. The argument is based principally upon the rule relating to a petition for the laying out of a highway, which it is said must describe the highway desired, and not several routes, as a jurisdictional fact. Spaulding v. Groton, 68 N. H. 77, 78, 44 Atl. 88. But it is not perceived what application the argument by analogy has in the present case; for the petition contained a statement that the layout was desired for "any or either of the following purposes," designating all the purposes mentioned in the statute. It informed the selectmen in effect that a layout reasonably convenient for the accomplishment of all toe purposes named in the statute was desired. If some of them were impracticable or ill adapted to the situation in Danbury, others were clearly feasible, and the district, when organized as a body politic, could determine how many of the designated powers or rights it would exercise. It was not within the scope of the selectmen's duty to decide that question. If the petition had used the word "all" instead of "any or either," the purpose of asking for a layout would not have been more apparent. The fact that the petitioners did not exclude any of the statutory rights which the district might acquire is evidence that they did not intend to exclude any of them, but to include all of them. If, therefore, the question presented is a jurisdictional one, little doubt can be entertained that the selectmen were authorized under the petition to consider all the purposes mentioned in deciding upon the district boundaries. The defendants' argument would lead to the conclusion that but one purpose could be legitimately alleged in a single petition, and hence that several petitions would be necessary if there were several purposes. Such a result shows the unsoundness of the argument. The petition was sufficient to authorize the defendants to act under the statute.

The case as presented is an application to the general superintending power of the court for relief from a somewhat unfortunate and awkward situation. Upon the hearing before the court upon the master's report, it was found as a fact that the selectmen, in establishing the boundaries of the proposed district—...