Blanchard v. Boston & M. R. R.

• Decision Date: 06 June 1933
• Citation: 167 A. 158
• Parties: BLANCHARD v. BOSTON & M. R. R. et al.
• Court: New Hampshire Supreme Court

167 A. 158

BLANCHARD

v. BOSTON & M. R. R. et al.

Supreme Court of New Hampshire.

June 6, 1933.

Proceeding by the Boston & Maine Railroad for authority to discontinue the Concord Street Railway and the Manchester & Concerd Street Railway. On the motion of Edward J. Blanchard, a citizen and taxpayer of Concord, for suspension of an order of the Public Service Commission, granting the authority asked, pending perfection of an appeal therefrom.

Motion denied.

Henry P. Callahan, of Concord, for the motion.

Demond, Woodworth, Sulloway & Rogers, of Concord, opposed.

PEASLEE, Chief Justice.

The right to appeal from an order for the discontinuance of a street railway is limited to interested parties. The only interest alleged to have been infringed by the order is that of the public. The adverse party to the railroad in the proceeding here involved is the state. Boston & Maine Railroad v. State, 77 N. H. 437, 438, 93 A. 306. It follows that the proponent of the present motion is not a party entitled to appeal from the order which has been made. Having no right of appeal, he cannot maintain the present proceeding. By the terms of the statute the right to seek the suspension of an order of the commission is given only as an incident to proceedings for an appeal. Pub. Laws 1926, c. 239, §§ 19, 22.

This conclusion is made clear by the consideration of certain provisions of the statute. The original act in terms limited the right of appeal to "any party in interest," Laws 1911, c. 164, § 17 (b), although this section was substantially altered in 1913 (Laws 1913, c. 145, § 18). "The material changes there made, however, are in the tribunal, substituting the Supreme Court for the superior court, and in the form of the procedure." Grafton, etc., Company v. State, 77 N. H. 490, 499, 500, 93 A. 1028, 1031. "The substance and scope of the appeal are unaltered." Id., 77 N. H. 499, 93 A. 1028, 1031.

In harmony with this is the provision as to the admission of additional parties in the Supreme Court. The description is here more specific than in the original act. The parties are those "whose rights may be directly affected by said appeal." Pub. Laws 1926, c. 239, § 6. This, however, means no more than the briefer statement in the earlier statute. It has long been the law in this state that, in proceedings before the county commissioners for the laying out of a highway, "as the right of appeal is not given to 'any person,' or to 'any taxpayer,' * * * but only to 'any person aggrieved'* (Pub. St. c. 68, § 2), it must be understood that the Legislature intended to give this right to those persons only who were interested in or affected by the proceedings in some manner differently from the pub-lie, citizens, and taxpayers generally. * * * The plaintiffs have alleged nothing distinguishing their right and interest from that of other citizens and taxpayers." Bennett v. Tuftonborough, 72 N. H. 63, 64, 54 A. 700, 701. The earlier cases are there collected. The rule was reaffirmed in Lane v. Keene, 74 N. H. 599, 66 A. 101, and has frequently been recognized. Worthen v. Railroad, 77 N. H. 520, 93 A. 1036; Worthen v. Kingsbury, 84 N. H. 304, 149 A. 869.

The idea that no single individual is entitled to demand the right to represent the public in proceedings originally prosecuted before the commission finds further confirmation in the provision regulating the institution of proceedings against a public utility for the revision of rates, etc. When such a complaint is filed by private parties they must be "customers or subscribers," and they must be of, sufficient number to indicate some public demand. There must be "not less than one hundred * * * in cities of thirty thousand or more inhabitants, or of not less than fifty in cities of twenty thousand or more inhabitants, or of not less than twenty-five in any other city or town." Pub. Laws 1926, c. 238, § 5. This careful limitation of the right, when thus conferred upon some individuals, shows the legislative understanding in two aspects. The right does not exist, except by express statutory provision; and, when granted, it should be so limited as to exclude action prompted by individual whim or private opinion. The same conclusion has been reached in other jurisdictions, where there are comparable statutory provisions. State v. Tri-State, etc., Company, 146 Minn. 247, 178 N. W. 603; Page v. Commonwealth, 157 Va. 325, 160 S. E. 33.

In the similar situation, where there is a question as to title to a public office, it is the law of this state that a private party cannot assume the public function of instituting and carrying on quo warranto proceedings. Meehan v. Bachelder, 73 N. H. 113, 59 A. 620, 6 Ann. Cas. 462. There, as here, the rule is that the public interest is to remain "under the control of such eminent legal ability as the state is able to command in the person of its principal prosecuting officer." Osgood v. Jones, 60 N. H....