Governor and Council v. Morey

• Decision Date: 07 March 1916
• Citation: 78 N.H. 125,97 A. 375
• Parties: GOVERNOR AND COUNCIL v. MOREY et al.
• Court: New Hampshire Supreme Court

97 A. 375

78 N.H. 125

GOVERNOR AND COUNCIL

v. MOREY et al.

Supreme Court of New Hampshire.

March 7, 1916.

Petition by the Governor and Council, on behalf of the State, against Charles H. Morey and others for the appointment of a commission or the reappointment of a former commission in eminent domain proceedings, that further notice and hearing might be had. Petition dismissed.

Petition by the Governor and Council, on behalf of the state, alleging that in the year 1911, proceeding under the provisions of the act providing for the acquisition of Crawford Notch by the state (Laws 1911, c. 130), the then Governor and Council caused a survey of the locus to be made and filed in the office of the secretary of state, and applied to the court for the appointment of commissioners to assess the damage to the owners; that a commission was appointed, heard all parties known or understood to be interested in the premises, and filed an award with the secretary of state; that subsequently the Forest Products Company, which had not theretofore appeared in the proceedings, moved for leave to appear in the superior court, where appeals were pending, which leave was granted upon the ground that the commission had not given the notice required by the statute; that the situation is such that other interested parties may hereafter make claim to the land taken, and that a final settlement of all claims against the state should be now effected. The prayer is for the appointment of a commission, or the reappointment of the former one, in order that such notice may be given and hearing had that the rights of all claimants shall be determined. Upon the earlier petition alluded to in the present one notice to appear in this court in answer thereto was given to all parties interested. The commissioners thereafter appointed gave notice of their hearings to those who appeared in compliance with the order of court.

James P. Tuttle, Atty. Gen., and Joseph S. Matthews, Asst. Atty. Gen., for the State. Drew, Shurtleff, Morris & Oakes and Bernard Jacobs, all of Lancaster, for Barron Hotel Co. and Abraham M. Stahl. Leslie P. Snow, of Rochester, for Morey and others. Allen Hollis and Alexander Murchie, both of Concord, for Forest Products Co.

PEASLEE, J. The petitioners assume that the proceedings taken under the former application are defective, so that there is occasion for further action, in order that the state's rights and obligations may be fully determined.

The jurisdiction of the court to now take any action whatever in the matter has been brought in question. It is argued that the appointment of the commission was a purely ministerial act, and that therefore the appointment of one commission exhausted all the power conferred upon the court by the special statute. Laws 1911, c. 130. It is not probable that the Legislature intended to so limit the power of appointment If, after the first commissioners had been designated, they had died, or become disqualified, or had declined to act, there would have been power to name a new commission. And so, if it should prove that the proceedings of the commission were so irregular or defective that no final judgment or decree could be entered, a like power would exist The Legislature intended to confer upon the court a power of appointment that would result in a final and binding adjudication of the matter in controversy.

Whether the regularity of the proceedings before the commissioners would be more appropriately considered upon a transfer of the case from the superior court, after a hearing upon an appeal from the commissioners, need not now be determined. The present petition is based upon the theory that there may be rights of parties which are in no way affected by the earlier proceedings, including the appeals. The question presented is whether there are rights wholly outside the cases now pending in the superior court. If it is true that there are such rights, it follows that they cannot be adjudicated in any future steps in those proceedings.

One question to be considered is whether there has been a failure to give the notice required by the special act. If there has been, other questions may become material. If there has not been such failure, there is no occasion for further proceedings here. The answer to this question involves a consideration of what the process is by which those claiming interests in these lands are made parties to the condemnation proceedings, so as to be bound by the judgments finally rendered therein. On one hand it is claimed that the notice issued by this court upon the application of the state for the appointment of commissioners is such process, and upon the other that it is the notice given by the commissioners.

The question whether due process of law requires notice of the application to appoint commissioners has been argued. Upon this the authorities are somewhat conflicting. The question usually arises upon the interpretation of a particular statute, it frequently involves matters of local practice, and much that has been said has no general application. In some jurisdictions it is held that the appointment of such a commission is a purely ministerial act, and that no notice is necessary. In other states the view is taken that the proceeding partakes more of the nature of drawing a jury for a specific case, that preliminary questions may be raised and considered, and that notice is essential.

If it be assumed that the former view is correct, and that notice preceding the appointment is not essential to the protection of constitutional rights, the question here in issue is still undecided. Did the Legislature intend that such notice should be...