Barry v. Little , 74 N.H. 319 ( 1907 )

The demurrer raised the question whether upon the facts alleged in the bill the plaintiffs are entitled to equitable relief. They seek to have the order of the board of license commissioners cancelling their license declared to be null and void. Whether they have misconceived their remedy it is unnecessary to determine, since they have not stated a cause of action showing that they have suffered actionable wrong. If the action of the commissioners in cancelling their license was legal, it cannot be nullified in this, or in any other, form of procedure.

That the commissioners were exercising judicial functions in deciding that the plaintiffs had violated the provisions of the license law and that they were no longer entitled to exercise the privilege conferred upon them by their license, cannot be doubted. Sargent v. Little, 72 N.H. 555; Parrent v. Little, 72 N.H. 566; State v. Corron, 73 N.H. 434. In the case last cited, which involved a similar question relating to the powers of the license commissioners, it is said (p. 457) that the defendant "had notice, was heard, and litigated before a competent tribunal the matter in issue, and the same results must follow the judicial action in which he took part as ordinarily attend an adjudication of which the parties have notice and in the course of which they are heard. In short, the cancellation of Corron's license was a judicial act, and the commissioners had jurisdiction of the parties to and the subject-matter of the suit." As there is no allegation in the bill that the plaintiffs were not properly notified of the hearing before the commissioners, and as they make no claim of that character, it is presumed that they participated in the trial before that board. Hence the board had jurisdiction of the parties as well as of the subject-matter involved in the complaint, and its judgment upon the issue tried is valid until set aside upon' appropriate proceedings.

The principal ground of complaint on the part of the plaintiffs, is, that the commissioners were disqualified to act in a judicial capacity in the trial of the complaint against them, because they had, before the time of the hearing and in the absence of the plaintiffs, heard and considered evidence which was prejudicial to the plaintiffs. But however reprehensible such conduct on the part of the board may be in the performance of judicial duties (and upon this point no opinion is expressed), it did not necessarily have the effect of rendering their proceedings absolutely void, so far as the plaintiffs are concerned. There is no allegation in the bill that they were ignorant, at the time of the hearing, of the facts which they now claim disqualified the members of the board from sitting in the case, or that they were not chargeable with knowledge thereof, or that they then objected to the tribunal on the ground of its disqualification for the reason suggested. In the absence of a statement of facts in the bill authorizing an inference that they were justifiably ignorant of the alleged incompetency of the board, it cannot be presumed that they were in that position at the trial. The only resulting conclusion is, that by their silence upon that point they were willing to submit the controversy to that tribunal, having jurisdiction of the subject-matter, and to waive the question of the bias or prejudice of its members produced by their having previously heard the statements of an interested witness, in the absence of both of the plaintiffs.

In State v. Daniels, 44 N.H. 383, the respondents, after verdict, objected that one of the jurors was disqualified because he had heard the case discussed before the trial. Upon this point the court say (p. 385): "There is a capital objection to the motion for a new trial on this account. It is not shown that the respondents and their counsel were not aware of the objection before the verdict was returned." This holding proceeds upon the obvious ground that the party urging such an objection assumes the burden of showing, that he did not knowingly and willingly submit to a trial by a prejudiced tribunal. If he did, he cannot be heard to complain after a verdict against him. Rollins v. Ames, 2 N.H. 349; Warren v. Glynn, 37 N.H. 340; Gilmanton v. Ham, 38 N.H. 108; Edmunds v. Griffin, 41 N.H. 529; Moses v. Julian, 45 N.H. 52; Burnham v. Goffstown,50 N.H. 560; Wentworth v. Farmington, 51 N.H. 128; Harrington v. Railroad,62 N.H. 77; Fowler v. Brooks, 64 N.H. 423; Bickford v. Franconia,73 N.H. 194, 196; Hutchinson v. Railway, 73 N.H. 271, 276; Moon v. Flack, ante, 140, 143. The demurrer was properly sustained.

Exception overruled.

All concurred.