Proprietors of Kennebunk Toll Bridge , 11 Me. 263 ( 1834 )

Mellen C. J.

at the term held in Cumberland, by adjournment in August following, delivered the opinion of the Court.

This is an application to this Court for a mandamus to the York County Commissioners, to compel them to accept the report of a certain committee which had been agreed upon by the said proprietors and the agent of the town of Kennebunk, pursuant to the first section of chapter 118, of the revised statutes, to estimate the damages sustained by said proprietors by the laying out of a highway in said town over their land; which report the said Commissioners, on presentment of it for acceptance, refused to accept, for reasons by them assigned, and appearing on the certified proceedings of the Commissioners now before us. The 4th section of the act above mentioned requires that the return or report of such committee shall be made under their hands and seals, to the Commissioners, and be by them accepted and recorded. The validity and legal effect of the report depend on the acceptance of it; of course, we must presume that it was never intended that such acceptance should be the necessary consequence of its presentment for that purpose ; for, if so, it could be of no use ; but that they should exercise a sound discretion of a judicial character in deciding on the question of acceptance, as the Court of Common Pleas do on deciding on the question of acceptance of a report of referees. In such cases the law requires an acceptance, and in the same language as is used in the 4th section before mentioned. The very idea of a power to accept a report seems to imply a power to refuse to accept it, if circumstances render an acceptance improper. Such a power ought to reside somewhere. Suppose that the committee, in such a case as the present, could be proved to have acted corruptly in forming their report, or to have committed a gross mistake, must the Commissioners, at all events, accept the report, contrary to truth, justice, and the plain dictates of common honesty ? We think not. In the case of Chase & al. v. Blackstone Canal Company, 10 Mass. 244; which was an application for a mandamus to the County Commissioners, to award costs to them in a case between the petitioners and the Company, the Court say, “ This writ lies either to compel the performance of ministerial acts, or is addressed to subordinate judicial tribunals, requiring them to exercise their functions, and render some judgment in cases before them, when otherwise there would be a failure of justice from a delay or refusal to act; but when the act to be done is judicial or discretionary, this Court will not direct what decision shall be made.” The Supreme Court of the United States, in the case of U. States v. Lawrence, 3 Dallas, 42, held, “ that they had no power to require a Judge to decide according to the dictates of any judgment but his own; that as the District Judge, in the case before him, in refusing to issue a warrant, had acted in a judicial capacity, they could not interfere to control or reverse his decision.” See also Comyn’s Dig. “ mandamus” A, 8 East, 213; 2 Johns. Cases, 72; 5 Binney, 87; 3 Binney, 275; 5 Binney, 537 ; 2 Esp. Dig. 668. We think these authorities are applicable, as we cannot view the acceptance or nonacceptance of such a report as a ministerial act. The Commissioners thought it was not, and after a hearing of the parties, decided not. to accept the same, and, being requested, gave their reasons in writing. We forbear entering into an examination of those reasons, because we are satisfied that a mandamus ought not to be granted.

Writ denied,