Inhabitants of Winslow v. County Commissioners , 31 Me. 444 ( 1850 )

Si-iepley, C. J.

The question presented is, whether an appeal, taken by virtue of the act approved on August 2, 1847, from the Court of County Commissioners to the District Court, opens the whole proceedings upon the petition for revision, or only such part of them as was embodied in a formal judgment of the County Commissioners.

The first and second sections authorize any person “ aggrieved by any decision” to appeal “ from the decision” of the Commissioners. The third section speaks of an “ appeal from the judgment” and of a report, whether “the judgment” shall be affirmed or reversed. The fifth section also speaks of “ the judgment” being affirmed in whole or in part.

This phraseology might indicate, that it was the intention to limit the proceedings on appeal to a revision of the matter formally adjudicated upon by the County Commissioners.

It cannot be supposed, that the well known rule of law, that an appeal from one tribunal to another, when facts are thereby presented, vacates the judgment and opens the whole case for revision, was overlooked or disregarded by the Legislature. If a limited revision only was intended by the appeal, it might be expected, that the language would indicate it very clearly. It was doubtless expected, that the decision or judgment of the Commissioners would embrace the whole matter contained in the petition. There are provisions in the Act exhibiting the intention to have the whole matter revised on the appeal.

The third section provides, that the committee appointed by the District Court, “ shall proceed to view the route named in the original petition.” That committee are to hear the parties and their evidence evidently respecting the route viewed. When they are required to report, whether, in their opinion, the judgment of the County Commissioners should be in whole or in part affirmed, such judgment must be intended, as would operate upon the whole route. In a certain event, after a decision upon the appeal, the County Commissioners are to proceed to lay out, alter or discontinue such highway, in whole or in part, having reference to the way described in the petition.

Taking into consideration the whole provisions of the Act, it appears to have been the intention to open by the appeal for revision, the whole proceedings under the petition.

The County Commissioners adjudged a part of the way prayed for, to be of common convenience and necessity, and laid it out, and were silent respecting the other part.

The provisions of statute, chap. 25, could not be complied with by laying out and causing to be recorded, part of a way prayed for, and by subsequently laying out another part of it, under the same petition.

The omission to lay out a part prayed for, is therefore, a practical denial of the prayer of the petition, to such extent.

It could not have been the intention of the Legislature to make the right of appeal depend upon the language used or omitted to be used, in making up in that respect a record of their proceedings, when the result prayed for in the petition was produced or refused. Writ denied.