Opinion
No. 4242.
Argued October 7, 1953.
Decided November 30, 1953.
In establishing the validity of a layout of a highway it is essential to prove that the mandatory requirements of the statute relating to the filing of a return of such layout have been complied with. In a complaint for operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, the mandatory requirements of the statute relating to the filing of a return of the layout of such way were complied with so as to establish it as a public way by filing a return of the layout with the Secretary of State. In such case, failure to comply with the further provision that a copy of such return be filed with the clerk of the town in which the highway is laid out did not affect the validity of the layout since such provision is merely directory and designed primarily to furnish information to residents of the town.
APPEAL, from a conviction in the municipal court on a complaint for operating a motor vehicle while under the influence of intoxicating liquor. R. L., c. 118, s. 16. Trial by jury resulted in a verdict of guilty.
The State and the respondent agree that the driving involved occurred entirely upon the present easterly lane of Route 28 in Salem. This lane was paved in 1950 and was not part of the roadway which had prior to that time been the paved roadway of Route 28. They also agree that the State has the burden of proving that the driving complained of took place on a public "way" within the meaning of the motor vehicle statute. R. L., c. 115, s. 1 XXXIV. There is no evidence of a dedication of this lane, or of a conveyance thereof or of travel thereon for twenty years within the terms of R. L., c. 90 (as amended by Laws 1945, c. 188) Pt. 1, s. 1.
The parties further agree that there is on file with the town clerk of Salem a petition and notice of hearing, it being the only paper relating to the layout or alteration or description or width of this lane or highway on file with him. Layout papers for it are on file with the Secretary of State.
The respondent seasonably moved to dismiss on the ground that "the evidence was insufficient to establish that the lane was laid out in the mode prescribed by statute because (a) the prosecution had not proved that a copy of the return required by Laws of 1945, Part 4, Sec. 11 [R. L., c. 90 (as amended by Laws 1945, c. 188) Pt. 4, s. 11] had been filed with the Salem Town Clerk, and (b) because the descriptions of the proposed location required by Part 4, Secs. 5 and 11 of said laws had not been filed with the Salem Town Clerk." This motion was denied and the Court (Griffith, J.) ruled as a matter of law that the motor vehicle was operated on a public highway and so instructed the jury. Respondent's exception thereto was reserved and transferred.
Louis C. Wyman Attorney General, George F. Nelson, Assistant Attorney General and Lindsey R. Brigham, County Solicitor (Mr. Nelson orally), for the State.
John B. Ford (by brief and orally), for the respondent.
Under the facts in this case the only method by which the State could sustain the burden incumbent on it (Dow v. Latham, 80 N.H. 492; Summerfield v. Wetherell, 82 N.H. 513) to show that the lane involved was a public "way" under the motor vehicle statute (R. L., c. 115, s. 1 XXXIV), was for it to prove that it was a highway "laid out in the mode prescribed therefor by statute." R. L., c. 90 (as amended by Laws 1945, c. 188) Pt. 1, s. 1. To that end the State introduced evidence that a commission appointed by the Governor and Council to do so (Id., Pt. 4, s. 2) had made and filed with the Secretary of State a return of the laying out or alteration of Route 28 which covered the lane in question. Id., s. 11.
The issue before us for decision is whether the fact that a copy of such return was not filed with the clerk of the town of Salem as required by said section 11 is fatal to the proof of a layout of said lane "in the mode prescribed therefor by statute." S. 1, supra.
The making of the return is not a merely ministerial act but a substantial and essential part of the duties of the authority laying out the highway. "Under our laws, the return is not a mere clerical formality, subsequent to the laying out. The highway is not legally laid out until the return has been made . . . In effect, the return is the laying out." Brown's Petition, 51 N.H. 367, 368.
The respondent correctly argues that it has been held by decision of our court at least since 1820 (Hardy v. Houston, 2 N.H. 309) that returns of highway layouts were to be filed with the clerk of the town involved. And up to 1891 town clerks were the only officials with whom such returns were filed. However, P. S., c. 70, s. 5, provided that in layouts which came under the authority of the Governor and Council the return was to be filed with the Secretary of State and a copy filed with the clerk of the town involved, and that was the law when Laws 1945, c. 188, was enacted. R. L., c. 93, s. 5.
Section 11 of Part 4 of R. L., c. 90 (Laws 1945, c. 188) provides as follows: "The commission shall make a return of the highway or any alteration by them laid out . . . and cause the same to be filed with the secretary of state, and file a copy of such return with the clerk of the city or town in which such highway or alteration is laid out." (Emphasis supplied).
It is our opinion that the return which "is not a mere clerical formality, subsequent to the laying out" but is "in effect the laying out" is the return required to be filed with the Secretary of State. This part of said section 11 is mandatory and if not complied with would be fatal to the layout. See General Motors c. Corp. v. Company, 84 N.H. 348. However the filing of a copy with the clerk of the town in which such highway is situated was provided for by the Legislature primarily to facilitate the obtaining of information thereof by the residents of the town involved and is merely directory (Horne v. Bancroft, 62 N.H. 362, 363; Gallup v. Mulvah, 26 N.H. 132) and a noncompliance therewith will not affect the validity of the layout. Horne v. Bancroft, supra; 50 Am. Jur. 42.
There being sufficient proof that the lane in question was a public "way" within the provisions of R. L., c. 115, s. 1 XXXIV, the order must be
Exception overruled.
All concurred.