Holbrook v. Faulkner , 55 N.H. 311 ( 1875 )

I also think the bill must be dismissed.

The fact of the existence of a school-house located on the east side of the river, taken in connection with the fact of the union of the two districts, and the votes of April 6, 1874, as it seems to me amount to a location by the district of the school-house on the lot east of the river, within the fair meaning of the act of 1871. (Laws of 1871, ch. 4.)

I see no valid objection to the proceedings of the county commissioners in determining the location upon the west side of the river. Their decision as to the location includes the fact that the petitioners were aggrieved. There was no necessity of their reporting that fact. The decision in writing, which the are required to file with the clerk of the district, has reference only to the location.

Whether the act of 1871 is defective in not fixing the length of time for which the decision of the commissioners shall be binding, need not now be inquired. It would doubtless be somewhat anomalous if the decision of a tribunal, invested by law with final and exclusive jurisdiction to determine the location of a school-house, could be overruled and annulled the next day after it is promulgated by a vote of the very majority against whose acts the judgment of such tribunal has been invoked. But whether in the present condition of the statutes on the subject that be so or not, I am of opinion that the judgment of the commissioners establishing the location had not been abrogated by any action of the district at the time this bill was commenced, for both the reasons suggested by the defendants' counsel in their brief: (1) There was no article in the warrant for the meeting of July 29, 1874, under which a vote abandoning the location could legally be had; (2) if such power exists in the district, which I by no means admit, it can only be exercised by changing the location, not by simply undoing what the commissioners have done.

The vote to dismiss the first article in the warrant of July 29 was undoubtedly a sufficient refusal by the district to warrant an application to the selectmen, under ch. 80, sec. 8, Gen. Stats., to say nothing of the neglect inferable from the dilatory proceedings shown by the case. It is said that this section empowers the selectmen to assess a tax and cause a house to be built only on a lot designated as provided in the earlier sections of the same chapter, and does not give them authority to build on a lot designated by the county commissioners according to the act of 1871. The result would be, that a locating by the county commissioners under the act of 1871 is worse than idle and nugatory, inasmuch as it puts it out of the power of the district to provide themselves with a school-house unless a majority shall finally agree to accept the location of the commissioners. For, after a location by the commissioners, they cannot legally build elsewhere; and if there is no way to compel the erection of a building on the lot designated by the commissioners, it clearly follows that the legislature not only very cunningly frustrated the sole purpose of their own act, but put it in the power of the minority in a school district to defeat all efforts of the majority to perform their legal duty in providing a school-house. Nothing short of language most explicit and unmistakable would warrant the court in finding a legislative intent so absurd.

The difficulty all disappears, as it seems to me, if we look at the statutes together. The title of the act of 1871 is, "An act in amendment of ch. 80, Gen. Stats., in relation to school-houses." The whole scope and purpose of sec. 8, ch. 80, is to provide a method for compelling the erection of a school-house on a lot legally designated for that purpose.

The two acts are in pari materia, and I think a plain application of a very common rule of interpretation requires us to hold that the provisions of section 8 apply as well to the new mode of designating the lot furnished by the act of 1871, as to modes in existence when the General Statutes were enacted.

The fact that one of the selectmen had signed a remonstrance against taking land of the Baptist society seems to be quite immaterial on the question of his competency to assess the tax.

SMITH, J., concurred.

Bill dismissed.