When Towns Act for the Wrong Reasons: Two New Hampshire Road Cases, 185 Years Apart
As we mark the 250th anniversary of the Declaration of Independence and New Hampshire’s adoption of its first constitution, it is worth reflecting on the local institutions through which public power has long been exercised. Sometimes that power is exercised by town meeting. Sometimes it is exercised by local officials such as selectmen. But our constitutional system always has recognized that local control must operate within the rule of law. From the beginning, courts have served as a check to ensure that public powers are exercised for the public purposes for which they were granted.
A pair of New Hampshire road cases decided 185 years apart illustrate the point. In each, local authorities used road power in a way that favored their own community. In each, the courts stepped in because the power was not being exercised for the public purposes the law requires.
The 1820 Turnpike Case
In 1799, the legislature chartered a corporation to build a turnpike from Keene through New-Ipswich to the Massachusetts line. By 1806, the road was complete. The corporation erected a gate, toll-house, and dwelling for the toll-gatherer at an expense of $800.
An old public road from Rindge crossed the turnpike and ran toward Boston. After the turnpike was built, New-Ipswich discontinued part of that old road and laid out a new segment nearby.
Then, in December 1817, the selectmen received a petition from Rindge residents complaining they were "grievously burthened" with paying toll at the gate. The petitioners asked that the old road be reopened. The selectmen obliged. The practical effect was immediate. Travelers could evade the toll by passing around the gate.
The turnpike corporation sued the selectmen for trespass (apparently alleging the new road interfered with its chartered right to collect tolls). In an 1820 decision, the New Hampshire Supreme Court (then known as the Superior Court of Judicature) held that if the selectmen proceeded for that reason alone, "their proceedings were most manifestly illegal." The selectmen had acted to redress a grievance they had no authority to address: "Such a grievance it was not their province to redress. They had no right to interfere."
The Court did acknowledge a distinction. If public convenience genuinely required a new road near a turnpike, the layout would be lawful, even if it allowed travelers to avoid the toll. "The public convenience and accommodation are in no case to be sacrificed to the local situation of a turnpike gate." But that was not the situation before the Court.
The 2005 Discontinuance Case
In a recent post, we looked at a modern echo of the same problem, but in the opposite direction. North Hinsdale Road connected the towns of Hinsdale and Chesterfield. Hinsdale residents used the road to access Route 9 in Chesterfield, and Chesterfield residents complained about the resulting traffic. In 2001, Chesterfield voted at town meeting to discontinue a quarter-mile section of the road. Hinsdale appealed. The trial court found the purpose of the vote was to "create a barricade or plug or roadblock" to traffic coming from Hinsdale. The Supreme Court affirmed.
The Common Thread
One case involved an action by the board of selectmen - elected officials exercising delegated authority. The other involved a vote at town meeting - pure democracy at work. Neither form of local decision-making was immune from judicial review.
The problem in each case was not simply that local officials or local voters made a bad policy choice. The problem was that road powers must be exercised for legitimate public purposes. They cannot be used to advance a private, parochial, or exclusionary objective, even when that objective appears beneficial to the local community. In 1820, the objective was helping residents avoid a toll. In 2005, it was blocking traffic from a neighboring town. Both times, the courts intervened.
New Hampshire law gives towns broad authority over their roads. It also provides a check. An aggrieved party may appeal, and the court reviews the decision on the merits. These protections have been part of our legal framework for more than two hundred years.
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