Griffin's Petition, 27 N.H. 343

Bell, J. The question raised by this case relates to the jurisdiction of the selectmen of a town to lay out a public highway within their town, where the highway applied for forms part of a more extended route passing through other towns. The form of the petition, and the facts stated in the case, show this to be such a highway.

The only objection urged is, that the road asked for in Hudson is only a part of a more extended road, required by the public good, if any new highway is required; and, therefore, the petition ought to have been presented, in the first instance, to the court of common pleas, which alone has jurisdiction to lay out such a road. The statute provisions on this subject are found in the' Revised Statutes, ch. 49, § 1, and ch. 50, §§ 1, 4, 5.

By the first, “ selectmen, upon petition, are authorized to lay out any new highway, or to widen and straighten any existing highway within their town for which there 'shall be occasion, either for the accommodation of the public or of the party applying.” By

section 1 of

chapter 50, “ Petitions relative to roads may be presented to the court of common pleas, in term time, or to the clerk, in vacation, in the following cases: 1. Whenever the selectmen shall neglect or refuse to lay out or widen and straighten a highway in their town. 3. When there shall be occasion to lay out or widen and straighten a highway over lands in two or more towns, one of which is in the county where the petition is presented. Other cases are enumerated not material here.

Section 4 provides that “if no sufficient objection be made, all petitions [to the court of common pleas] relating to roads, shall be referred to the road commissioners of the county, except where the proposed highway, shall pass over lands in two or more countiesand by

section 5, “ in such cases the petition shall be referred to the road commissioners ,for all such counties,” &c. Though the language of the first

section quoted seems very broad and unqualified, giving to the selectmen power to lay out any new highway within their town for which there shall be occasion ; and

section 1 of

chapter 50 seems to give an option to present petitions for new highways in two or more towns to the court of common pleas, by the expression “ Petitions may be presented to the court of common pleas,” &c., yet the court are of the opinion that it was the intention of the statute to give to selectmen jurisdiction to lay out highways only in those cases where the whole road, required to be laid out for the public accommodation, is situated within the limits of their town.

They consider the power given to the courts of common pleas and road commissioners to lay out new roads, extending over lands in two ór more towns, as exclusive; and that the selectmen have, in such cases, no concurrent jurisdiction with them as to those parts of such proposed roads which lie within their towns. They regard this objection as fatal to the jurisdiction of the selectmen, and, consequently, to that of the court of common pleas, in cases founded upon the neglect or refusal of the selectmen to lay out such road.

Exceptions to the jurisdiction of the courts or other tribunals,relating to the subject-matter of their jurisdiction, cannot be waived by any omission or neglect of the party to take the exception ; indeed, there is no pretence of such waiver In this case, since these objections were seasonably made in the court below; nor can the defect be obviated or cured by any act of the parties, since consent can never confer jurisdiction ; nor by anyruling or decision of the court itself, since all its proceedings are extra-judicial, cor am nonjudice ; and they are, consequently, fatal at whatever stage of a cause the party may seek to take advantage of them.

The State v. Richmond, 6 Foster’s Rep. 232. The objection here is of this class', it touches the subject-matter of the jurisdiction of the selectmen and the appellate jurisdiction ofthe common pleas, and the report must, therefore, be rejected and the petition dismissed.