Smith v. Commissioners of Cumberland County , 42 Me. 395 ( 1856 )

Rice, J.

The statute of 1852, c. 221, requires that the return of the Commissioners, pending proceedings, shall remain upon the Commissioners’ files, in the custody of their clerk, for the inspection of interested parties. It is contended that the record in this case does not show that this provision of the statute has been complied with.

The record does not, in terms, state that fact. But that the return of the Commissioners was really, as matter of fact, on file, as required by law, is not asserted, and, from what appears, we think the inference is legitimate that such was the case. Facts may be established aliunde the record. West Bath v. County Commissioners, 36 Maine, 74. The same objection was taken under a state of facts almost precisely similar in Detroit v. County Commissioners, 35 Maine, 373, and held to be insufficient to authorize the issuing of a writ of certiorari.

Section 3, of c. 25, R. S., was amended by Act of 1852, c. 221, so as not to require the proceedings of the Commissioners to be recorded until they are completed. The proceedings in this case were commenced while the Act of 1852 was in operation. Proceedings had, in conformity with the provisions of this Act, while it was in force, cannot be deemed irregular. The operation of the Act of 1853, c. 26, by which c. 221 of laws of 1852, was amended, was prospective. Detroit v. County Commissioners, 35 Maine, 373.

The committee appointed by the Supreme Judicial Court, affirmed the doings of the County Commissioners, in locating the highway in controversy, in every particular.

It is now contended that after the report of the committee, was accepted by the Supreme Court, it was the duty of the County Commissioners to locate the highway de novo, conforming in all respects to the requirements of the statute in locating highways upon an original petition.

By § 2, of c. 28, laws of 1847, it is provided that when an appeal is taken, “ all proceedings shall be stayed in said Court of County Commissioners, until a decision shall be had in said District Court, from which there shall be no appeal.” By § 4, of the same chapter, it is further provided, “ if such judgment, (of the District Court,) shall be wholly against the location, alteration or discontinuance in question, no further proceedings shall be had thereon by the County Commissioners ; but if otherwise, then the County Commissioners shall proceed to lay out, alter, or discontinue such highway, in whole or in part, as the judgment may bo; and in the manner and according to the regulations and limitations provided by law, where no appeal is taken.”

The first provision suspends, during the pendency of the appeal, all proceedings of the County Commissioners, at the point reached by them when the appeal is taken. And if the decision of the appellate court is wholly against the location, alteration, or discontinuance, no further proceedings can be had by the County Commissioners in the premises; but if, on tho other hand, the proceedings of the Commissioners are affirmed, in whole or in part, then it becomes their duty to proceed in conformity with such decision, and lay out, alter, or discontinue such highway, in whole or in part, as such judgment may be. That is to say, the Commissioners are to proceed from the point which they had reached, when their proceedings were suspended by the interposition of the appeal, and complete the laying out, alteration, or discontinuance of such highway, in accordance with the decision of the appellate court. This, we think, is the reasonable construction of this statute, when taken as a whole. The construction contended for, by the counsel for the petitioners, would require of the Commissioners a work of supererogation.

It is also contended that the record does not show that the committee appointed by the Supreme Judicial Court, were disinterested men. There is no suggestion that the men who composed that committee were in fact interested in the subject matter upon which they were called upon to act. The defect, if any exists, is in the record of this Court, and is probably simply a misprision of the clerk, which may be corrected by amendment. At most, it appears to be only a technical defect for which we should not feel authorized to quash this record.

It is further objected, that the road lying wholly within the town of Windham, the County Commissioners have no jurisdiction. This objection has been ably and ingeniously presented by the petitioners’ counsel. The same question was before this Court in the case of Harkness v. Waldo County Commissioners, 26 Maine, 353. It then received a careful examination by the Court, in an opinion drawn by Mr. Justice Shepley, in which the history of our legislation upon that subject is critically examined. On a revision of that opinion, and the grounds upon which it is based, we perceive no reason to change or modify it. That it is satisfactory to our people, is evinced by the fact that it has now stood upon the judicial records of our State for a period of nearly ten years without modification or complaint.

That there are some technical informalities in the record cannot be controverted, but they do not appear to be of such a character as to affect injuriously the rights of any citizen or to be prejudicial to the public interest. Under such circumstances we do not deem it expedient, in the exercise of a discretionary power, to disturb proceedings which have received the concurrence of the County Commissioners and of an intelligent committee appointed by this Court, as well as the approval of this Court itself. For these reasons the writ must be denied in any contingency. We have expressed these views for the purpose of affording a practical rule for proceeding in like cases. But this case is irregularly before this Court, and, for that reason, must be dismissed from the docket.

Tenney, C. J., and Hathaway, Cutting and Goodenow, J. J., concurred.