Papademas v. State

• Decision Date: 30 January 1968
• Docket Number: No. 5676,5676
• Citation: 237 A.2d 665,108 N.H. 456
• Parties: N. George PAPADEMAS v. The STATE of New Hampshire and John O. Morton, Commissioner, New Hampshire Department of Public Works and Highways.
• Court: New Hampshire Supreme Court

Page 665

237 A.2d 665

108 N.H. 456

N. George PAPADEMAS v. The STATE of New Hampshire and John O. Morton, Commissioner, New Hampshire Department of Public Works and Highways.

No. 5676.

Supreme Court of New Hampshire.

Argued Dec. 6, 1967.

Decided Jan. 30, 1968.

N. George Papademas, pro se (by brief and orally).

George S. Pappagianis, Atty. Gen., and R. Peter Shapiro, Asst. Atty. Gen., for defendants.

GRIFFITH, Justice.

Action in the nature of a petition for a writ of mandamus to prevent the commissioner of public works and highways for the State of New Hampshire from constructing certain facilities in the area of Crystal Lake in Enfield, New Hampshire. The matter was submitted to the Trial Court (Keller, J.) on an agreed statement of facts and certain issues of law raised thereby were transferred without ruling.

The plaintiff in this case owns property abutting on Crystal Lake in Enfield, New Hampshire but not part of any proposed taking by the State of New Hampshire. The defendant proposes to construct a new access to the lake over an existing right of way and other lands of an adjacent owner pursuant to the provisions of RSA ch. 235. The proposed taking principally increases the area of the old right of way so that the last 160 feet, more or less, of the highway on the lake side will be 90 feet in width instead of 40 feet. In the last 160 feet the State proposes to construct an area for parking and turning around of vehicles and facilities to launch boats.

A petition dated June 16, 1966 was presented to the Governor and Council seeking the proposed extension of the road and on July 18, 1966 the Governor and Council appointed a Commission to lay out the facilities under RSA ch. 235. A public hearing was held by the Commission on August 30, 1966 to determine the necessity for and location of the facility. The Commission reported its findings to the Governor and Council who authorized the construction of the road on March 31, 1967.

The original petition to the Governor and Council was signed by Richard W. Bryant of Enfield, an employee of the New Hampshire Fish and Game Department. The layout Commission appointed by the Governor and Council included as one of its three members E. Bertram Astles an employee of the New Hampshire Department of Public Works and Highways.

The first issue of law transferred was:

1. Is there a conflict of interest present which voids the action of the Layout Commission and the Governor and Council by virtue of the initial petition being originated in part by a State employee and the fact that a State employee served on the Layout Commission?

We know of no requirement that a signer of an initiating petition be disinterested in any case. In fact the very act of petitioning for the executive to take action negates neutrality. A short answer therefore to the plaintiff's objection to one of the petitioners being an employee of the Fish & Game Department is that petitioners are presumed partisan and have a right to be partisan.

Service on the Layout Commission by an employee of the Highway Department presents a different proposition. A Layout Commission in the layout of a highway and in the assessment of the damages is acting in a judicial capacity. Horne v. Rochester, 62 N.H. 347; Dana v. Craddlock, 66 N.H. 593, 32 A. 757.

In argument counsel states that the objection to the actions of the Layout Commission were limited to the layout of the highway and that they were not here objecting to the assessment of damages. While there would be an appeal and a trial de novo in the Superior Court on the assessment of damages none lies on the layout except to correct gross mistake or fraud, RSA 235:2, 235:4; RSA 233:10. Therefore, the question may properly be examined here. Tracy v. Town of Surry, 101 N.H. 438, 146 A.2d 268. The appointment by Governor and Council of an employee of the Highway Department to the Layout Commission was not forbidden by the statute (RSA 235:2) and was clearly for the purpose of adding professional assistance to an otherwise lay commission.

The argument of the plaintiff claims an incompatibility of office and conflict of interest not for the purpose of removal of the officer as in Cotton v. Phillips, 56 N.H. 220, and School Dist. No. 6 in Andover School Dist. No. 6 v. Carr, 55 N.H. 452 but as a direct attack on the decision of the Commission. The law of agency relied upon by the plaintiff (Restatement Second, ss. 39, 385, 387) does not control the issue unless the conflict of interest between employments would render the tribunal unfair and their decision void. This court has consistently refused to rule that remote connections of a juror with one of the litigants, vitiates a verdict. McLaughlin v. Union-Leader, 99 N.H. 492, 499, 116 A.2d 489; Chagnon v. Union-Leader, 103 N.H. 426, 441, 174 A.2d 825; Pierce v. Mowry, 105 N.H. 428, 430, 201 A.2d 901. Conflict of interest has been held to prevent a member of a city council from participating in a judicial capacity in a matter that he is a party to (Rollins v. Connor, 74 N.H. 456, 69 A. 777) but not to prevent the chairman of the State Board of Education from participating in a decision which would remotely affect him in other capacities. Opinion of the Justices, 104 N.H. 261, 183 A.2d 909. See also New Hampshire Milk Dealers' Ass'n v. New Hampshire Milk Control Board, 107 N.H. 335, 222 A.2d...