Stanyan v. Town of Peterboro

• Decision Date: 29 July 1898
• Citation: 69 N.H. 372,46 A. 191
• Parties: STANYAN v. TOWN of PETERBORO.
• Court: New Hampshire Supreme Court

46 A. 191

69 N.H. 372

STANYAN

v. TOWN of PETERBORO.

Supreme Court of New Hampshire. Hillsboro.

July 29, 1898.

Exceptions from Hillsboro county.

Action by Charles A. Stanyan against the town of Peterboro. From rulings in favor of plaintiff, defendant brings exceptions. Exceptions sustained. Judgment for defendant.

Debt to recover penalties for the neglect of the defendant town to maintain guide-boards at the junctions of highways therein. Writ dated September 26, 1896. Trial by the court. The court ruled that in this action, brought under section 2, c. 78, Pub. St., the requirements of section 7, c. 257, Id., relative to notice, do not apply, and the defendants excepted. The court ruled that under section 2, c. 78, Id., towns are chargeable for neglect to maintain guideboards at each junction of highways, that such neglect is not considered as one entire offense for all the junctions neglected in the town, and that in this regard the decision in Clark v. Lisbon, 19 N. H. 286, does not apply to cases brought under section 2, c. 78, Pub. St., and the defendants excepted.

William S. Franklin and E. A. & C. B. Hibhard, for plaintiff. James F. Brennan, for defendant.

PARSONS, J."If any town neglects to keep in suitable repair guideboards or posts, * * * it shall forfeit for each neglect five dollars, for the use of the person suing therefor." Pub. St. c. 78, § 2. "Whenever a fine or penalty is imposed for neglect for any period of time, such neglect may be alleged to have begun at any specified time, and shall be reckoned from the time so alleged; but no suit or prosecution in such case shall be begun against a town or town officers until twenty days after notice in writing of the intention to begin it, nor then, if within that time the duty is performed." Id. c. 257, { 7. The first question raised is whether an action to recover a penalty of a town under tub. St. c. 78, § 2, for neglect to keep in suitable repair guideboards or posts, can be maintained without 20 days' notice of the intention to bring such action, as provided in the section last cited. The suit was brought without notice. The plaintiff claims that none is required; that in the first clause "neglect for any period of time" refers only to such neglects as must continue a specified period of time in order to expose those guilty of them to the penalty; and, consequently, that the proviso as to notice applies only to suits for a penalty where the forfeiture is incurred only if the neglect extends over a specified period of time. In short, that the statute is to be understood as if it read, "whenever a fine or penalty is imposed for neglect for any specified period of time." But it is manifest that neglect for any period of time may mean neglect for a definite or an indefinite period. Towns have, by statute, been made liable for damages happening to any traveler by reason of any defect in any highway rendering it unsuitable for the travel thereon (Pub. St. c. 76, § 1); but the statute has been construed not to impose liability where the immediate cause of the injury is such a defect that the town could not have had notice of it, or could not have prevented or remedied the defect before the accident (Palmer v. City of Portsmouth, 43 N. H. 265; Clark v. Barrington, 41 N. H. 44; Howe v. Plainfleld, Id. 135; Johnson v. Haverhill, 30 N. H. 74; Hubbard v. Concord, Id. 52). While in many, and perhaps most, suits that might be brought for neglect by a town to keep a guidepost in suitable repair the nature of the lack of repair alleged would probably be such that, if it existed, the town must have had knowledge of it, and an opportunity to make repair, it does not follow that the plaintiff in such a case could recover upon proof that at a single instant of time a guideboard or post was not in suitable repair. A post blown down by a tornado, destroyed by fire, or cut down through malicious mischief could not have been intended to afford ground for suit until the town had had notice, actual, or constructive from lapse of time, and a reasonable opportunity to make repair. A reasonable time, determined by the verdict of a jury in a particular case,is equally embraced within the term "any period of time," as a fixed period by law determined to be reasonable in all cases. "The time and circumstances in which a statute was made, and the history of legislation on the subject, are competent evidence of legislative intent." Opinion of the Justices, 66 N. H. 629, 645, 33 Atl. 1076. " 'Such construction ought to be put upon a statute as may best answer the intention which the makers had in view. * * * The intention * * * is sometimes to be collected from the cause or necessity of making a statute; at other times from other circumstances. Whenever this can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contrary to the letter of the statute. * * * A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter. * * * A thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers.' Bac. Abr. tit. 'Statute,' I, 5." Id. 557. The object of a statute is to be regarded, and all parts of the statute brought together, to ascertain its meaning. Barker v. Warren, 46 N. H. 124. The history of legislation upon the subject, the circumstances under which the several statutes were passed, are properly considered in connection with the words of the statute, the context, etc., in order to ascertain the intention of the legislature. Rich v. Flanders, 39 N. H. 304, 312. Since 1792 it has been thought necessary, "for the accommodation of the citizens of this state, as well as for other persons who may have occasion to travel in and through the same," that a "monument or post guide" should be erected and maintained at the intersection of public highways, which should give information of the direction of and distances over the intersecting ways. The act of December 17, 1792, on this subject remained in force without change until the Revised Statutes in 1842. Laws, Ed. 1805, p. 335; Laws, Ed. 1815, p. 393; Laws, Ed. 1830, p. 584. This act prescribed in detail the character of the post guide, and placed the duty of erection and maintenance upon the selectmen, in the absence of a committee elected by the town for the performance of that duty, and imposed a fine of 20 shillings. In the Revised Statutes of 1842 the original law was greatly condensed and materially altered. The towns were made liable to a penalty of one dollar for each month's neglect of the duty of guidepost maintenance directly imposed upon them by the chapter, the penalty being recoverable by any one who might sue therefor. In 1845, or early in 1846, numerous suits were brought against various towns, clearly as matter of speculation, to recover the penalty provided by the guidepost law in that revision. These suits promised, if successful according to the claims of the plaintiff, and what seems to have been the general interpretation of the statute at the time the suits were brought, to draw large sums from the delinquent towns. The towns made common defense, and the controversy attracted much attention. Bell's Bench & Bar of N. H., 191, 216. The object of the penal provisions of the law—the due performance of die duty of guideboard maintenance by towns—had largely failed. These provisions seemed destined to result, in practice, merely in the production of large revenues to industrious prosecutors, at the expense of the towns, without advantage to the public accommodation. It was also considered that there might be highway junctions where the travel was inconsiderable, or the route plain, at which, for these or other reasons, the public accommodation did not require direction for travel, and at which, therefore, the maintenance of guideposts was unnecessary. The suits brought under the Revised Statutes were not determined until the December term, 1847. The docket entries show that Roberts v. Rochester and Flanders v. Atkinson—which is probably the case referred to by Judge Woods (Clark v. Lisbon, 19 N. H. 286, 288) as Flanders v. Plaistow, and was entered "Neither party"—were decided at that term. While matters were in this situation, and without the light of the construction put upon the Revised Statutes in the decision of those cases, chapter 02 of the Revised Statutes was repealed, and a new act passed. Laws 1846, c. 330. The mischief of the old statute as it was understood and the purpose of the new are clearly declared by its provisions. Towns were authorized by vote to dispense with a guide-board or post at any place or places where they believed the same unnecessary, and their liability in a suit for a penalty was made to depend upon the following: "Provided, however, that no such suit shall be commenced until the person proposing to bring such suit shall have given to one of the selectmen of such town notice in writing of his intention to commence such action, at least twenty days prior thereto; and if the said selectmen shall cause to be erected or repaired such guide-board or guide-post before the expiration of said twenty days, no such action shall be sustained." Laws 1846, c. 330, § 2. The contemplation of the statute was that, upon notice of intention to bring suit, the duty would be performed, and thereby the public accommodation would be subserved, and the act would accomplish its purpose, instead of furnishing revenue to prosecutors at the expense of towns. The statute of 1846 is clear. The only subject for inquiry is whether any change has since been made. Except the act of February 17, 1897 (Laws 1897, c. 17), there has been no legislation upon the subject since 1846, and consequently no change in the law, unless made in the revisions of 1867, 1878, and 1891. The law of 1897 does not appear to...