Harkness v. Waldo County Commissioners , 26 Me. 353 ( 1846 )

The opinion of the Court was drawn up by

Shepley.!.

— These petitioners desire to bring before the Court the proceedings of the County Commissioners of this county, on a petition filed in October, 1844, to have a highway .laid out leading from Fish’s mills in the town of Hope, to a way near the dwellinghouse of Albert Eells in the town of Camden, to have them quashed.

The first error alleged is, that the petition was not presented at a stated session of the County Commissioners. The statute c. 25, § 1, provides that it should be presented “at one of their regular sessions.” It was presented, while they were in session in the month of October, by an adjournment of the August term. A petition presented during a regular session, at any period of the session, is presented at a regular session. Parsonsfield v. Lord, 23 Maine R. 515.

The second is, that the Commissioners have adjudged the whole way prayed for to be of common convenience and necessity, and have laid out a portion of it only. Some of the petitioners are the owners of lands, over which the way laid out passes. Others of them have no private interest. No one of them can be affected otherwise than as members of the community by the omission to lay out the remaining portions of that way; and as they have not suffered any private injury, they cannot insist, that the Court for that cause should quash the proceedings.

On the third error assigned it is sufficient to remark, that by adjudging the way prayed for to be of common convenience and necessity, they adjudged each portion of it to be so.

The fourth error alleged is, that they had by law no jurisdiction to lay out a highway within the limits of a town. The history of the legislation and decisions respecting it is a little singular. The statute passed in the year 1821, c. 118, contained a provision copied from a statute of Massachusetts, which had received a construction authorizing the court of sessions to lay out a highway within the limits of a town for the reason, that one might be required for the public convenience to pass through a part of a town, where there might be no occasion for a town way. That provision authorized the court of sessions to lay out or alter highways “ from town to town or plane to place.” This Court considered, that the legislature had adopted that construction by the use of the same language.

When the courts of sessions were abolished, and their powers transferred to County Commissioners, by the act of March 10, 1831, c. 500, it was provided, “that all and every petition for the laying out, alteration, or discontinuance of any highway or common road leading from town to town, shall be presented to the County Commissioners.” The words from place to place were omitted. This Court came to the conclusion, for the reasons there stated, in the case of New Vineyard v. Somerset, 15 Maine R. 21, that the like power was conferred upon the County Commissioners to lay out a highway within the limits of a town. At the next session of the legislature, the act of February 8, 1839, was passed, depriving them of that power, without conferring upon them or upon town officers the power to alter or discontinue an inconvenient or useless portion of a highway within the limits of a town. This condition of the law appears to have been noticed by the commissioners for the revision of the statutes, and they, in a note to c. 25, as reported to the legislature, presume that it was not the intention by the act of February 8, 1839, to restrict the powers of the County Commissioners in the alteration or discontinuance of any county road before laid out. And yet such power could exist only by the construction, which had been given to the act of March 10, 1831. For the power to alter or discontinue was no broader by that act, than the power to lay out. They appear therefore to have framed the first section of that chapter to meet, what they supposed might have been the intention of former legislative bodies, by giving the power to lay out new highways from town to town only; and the power to alter or discontinue any highway, whether within the limits of a town or not. But the legislature rejected that provision. And appear to have resorted to the act of 1831, and to have re-enacted that provision, which had received a judicial construction, with some but no important change in the language, so far as its interpretation may be affected, thereby making the power to locate co-extensive with the power to alter or discontinue. And if the section should not now receive the same construction, which the substance of the provision had before received, the same difficulties then pointed out as the result of a different construction would be still found to exist. Hence the inference is very .pressing, that the legislature by adopting the substance of the provision contained in the act of 1831, must have intended to do it with the construction, which it had received. And that the reason for rejecting the provision reported was not to refuse to the County Commissioners the power to alter or discontinue a highway within the limits of a town, but to grant with it the power to lay out highways within such limits. It cannot fairly receive any other construction, unless the Court should come to the conclusion, that it was the deliberate intention of the legislature to refuse to confer the power upon any state or town officers to alter or discontinue an inconvenient or useless highway existing within the limits of a town. The prohibitory act of 1839 was repealed by the general repealing act of the Revised Statutes.

' Writ refused.