Atlantic & St. Lawrence Railroad v. Cumberland County Commissioners , 28 Me. 112 ( 1848 )

The opinion of the Court was drawn up by

Sheplev J.

The question presented for consideration is, whether the railroad company can be compelled by an order made by the county commissioners, to pay for the services of the commissioners and for their expenses, incurred while they were employed on petitions presented by the company, to have the damages assessed, sustained by persons, by the location of the railroad over their lands.

The statute e. 99, § 13, provides, that “ the compensation of each county commissioner shall be two dollars and fifty cents a day, and in that proportion for any part of a day actually employed in the service of the county.” They are authorized and required by that statute to perform many duties for the county. They are also authorized to perform many duties not particularly beneficial to the county. In some of those cases, provision is made for the payment of their services by those who are especially benefitted by them, and in other cases no sueh provision appears to have been made.

They are authorized to lay out and alter town and private ways, when the selectmen of towns‘have unreasonably refused or negleeted to do so. In such cases the costs of the proceeding, which would include compensation for their services, are to be paid by the persons for whose benefit private ways are laid out or altered, and by the towns, when town ways are laid out or altered, c. 25, § 32.

When such ways have been laid out or altered by the selectmen, and towns have unreasonably refused or delayed to approve the same, the county commissioners are authorized to approve them, and to direct the proceedings to be recorded by the town clerk. But no special provision is made for the payment of their services, c. 25, § 34.

They are also authorized to discontinue town and private ways, when any person is aggreived by the refusal of a town to discontinue them; and no special provision is made for the payment of their services, c. 25, § 33.

They are required to perform certain duties on applications made by individuals for the assessment of damages sustained by them, by the laying out, alteration, or discontinuance, of town and private ways; and there is no special provision made for the payment of such services, c. 25, <§> 36.

They are required to cause town and private ways accepted by them to be opened, when the towns have neglected to open them ; and there is no special provision made for the payment of their services, c. 25, § 40.

They are authorized to ascertain and determine the damages to be paid by railroad corporations for any real estate taken by them under the same conditions and limitations, as are by law provided in case of damages for laying out highways, c. 81, $ 3.

A like provision exists in the first section of the charter of the corporation, which has presented this petition. But in neither of those enactments is there any special provision made for the payment of the services of the commissioners. And yet those services are not performed for the particular benefit of the county.

If requested by the owners of real estate taken by railroad corporations, the commissioners are authorized to require those corporations to give security for the payment of all such damages and costs, as shall be awarded for the real estate so taken, whether the application for the assessment of the damages be made by the corporation or by the owner of the land. c. 81, <§> 6. In behalf of the respondents it is contended, that the amount to be taxed for the services of the commissioners would be included in the costs to be thus secured. The owner of the estate taken surely could not be liable to pay for the services of the commissioners in those cases, in which the application was made by the corporation, and yet in such cases they are authorized to require security to be made for the payment of the damages and costs. Those damages and costs are such only as are awarded to the owner of the estate, and can include the amount to be paid for the services of the commissioners only, when the owner of the estate is liable to pay them. There is no provision, that he shall be liable to pay them even, when the application is made by him.

The result of an examination of the several statute provisions is, that there are indications of a purpose or design, that the commissioners should be paid by the county, while employed in business, in which the county has a particular interest; and that they should be paid by towns, corporations, or individuals when employed in business, in which such towns, corporations, or individuals, had a particular interest, and in which the county had no such interest. But there are no statute provisions suited to carry into effect in certain cases the design thus indicated. And among them is the case of services rendered for railroad corporations to estimate the damages to be paid by them for real estate taken for their use. As the county commissioners cannot exercise any power not conferred upon them by statute, they cannot compel payment for their services performed for the benefit of railroad corporations, unless some statute provision is found authorizing them to do so. It may be highly probable, if not clearly perceived, that the Legislature would have conferred the authority to do so, if the defective provisions of 'the statutes had been noticed and considered.

■ While judicial tribunals should so interpret legislative enactments as to cause the intention of the Legislature to be carried into effect, if it be possible, they are not authorized to supply obvious defects, when by their supply alone power would be granted to enable those entrusted with the exercise of it, to carry into effect the purposes contemplated by the general course of legislation.

The writ prayed for is granted.