City of Belfast , 53 Me. 431 ( 1866 )

Kent, J.

This Court has no jurisdiction of matters concerning the determination as to laying out of roads, except on an appeal from the decision of the commissioners, as to the expediency of the laying out or altering such way. In case of the appointment of a committee by this Court, § 35, c. 18, R. S., their report "shall be made at the next or second term of the Court after .their appointment.” In this case the report was not made, until the third term after their appointment. In the case of Inhabitants of Windham, petitioners, 32 Maine, 452, this point was raised and determined. In that case, the report was m'ade and accepted by the Court one term too late. C. J. Shepley, says, — " It was one term too late. The Act required it to be made at the June term. The language of the statute is emphatic and admits of no construction. It is, that the committee shall report at the next term after their appointment. This provision, which was made for the purpose of avoiding delay, not having been complied with, all the subsequent proceedings in the District Court were irregular and void.”

But it is contended that the parties interested agreed in writing, that the committee might, in a certain contingency, withhold their report beyond the second term. The written agreement is made part of the case. A strict construction of its language must perhaps lead to the conclusion that the contingency contemplated has not occurred. It provides that, in case they determine to revoke the doings of the county commissioners in both cases, or in case they decide to affirm said doings, their reports shall be made at the next term. They have in fact affirmed the doings of the county commissioners in both cases.

But if a more liberal construction of the paper would leave it as an agreement or assent of both parties, that the report might be delayed beyond the second term, the question arises whether such consent can give jurisdiction or authority to the Court to receive and accept it at the third term.

The statute does not, as it does in many other cases, give authority to the Court to allow an entry or to receive a report after the time prescribed, in cases of mistake or error. It is, as C. J. Shepley says, " emphatic, and admits of no construction.”

There is no doubt that, as to matters purely personal, or where a party has some right or privilege, which he may claim, he may waive it, — as notice, or a right to object to a judge or a juror, or exemption from certain duties. But consent of parties cannot confer a jurisdiction, which is excluded by law. Carlisle v. Weston, 21 Pick., 536; Smith v. Robinson, 13 Met., 165; Sargent v. Hampden, 29 Maine, 70. The case of Windham, pet’r, 32 Maine, (before cited) establishes the point that the report not having been made at the term named in the statute, the Court had no jurisdiction, and even the acceptance of the report by the Court was of no avail.

It has been held in Massachusetts that, where an appeal from the decree of the commissioners of insolvency was not entered at the next term of the Supreme Court, the Court had no power to allow the appeal, even if it was not entered at the proper term through accident or mistake.

The statute was held to be imperative and absolute. Palmer v. Dayton, 4 Cush., 270. And the same Court held; in a subsequent case of a like nature, where the record showed that " all parties interested waived all objection that the said appeal should have been made to the April term,” that "the consent of parties, to the entry of this appeal at a term which was not the time fixed by law for such entry, could not give the Court jurisdiction of the appeal.” Eddy’s case, 6 Cush., 28.

We are of opinion that the agreement cannot avail to avoid the statute requirement. For the same reasons, the party, by signing the paper, is not estopped’, so as to confer jurisdiction. Jurisdiction given by statute cannot be established, against the positive provisions of the law, by an estoppel, which might bind a party, — as between himself and another party.

The respondents present another question, which lies behind the report and all the objections to it. It is said that this road was laid out by the county commissioners over tide waters, by virtue of a special law of 1846, c. 365. By that statute, "the county commissioners of Waldo county are authorized and empowered to lay out and establish a road over Fish creek, in the town of Belfast, if public convenience requires it.” This is the whole statute.

It is contended that this way was not laid out by the commissioners under the general statute, defining their powers, and that no appeal lies from the decision of the commission-, ers, — that they could lay .it out without following the provisions of any other statute, if in their judgment public convenience required it, — that a new power was conferred on them, unrestricted, unqualified, absolute, which they alone could exercise, and in the exercise of which they were subjected to the control of no one. This argument, when pressed to its ultimate conclusions, would dispense with the petition, the notices, and hearing and allowance of damages. It would allow the commissioners to lay out the road, without other action than a decision that public convenience required it.

Our opinion is, that the object and effect of the statute was simply to enlarge the jurisdiction and power of the commissioners over tidewaters. Without this statute they had no such power. The Legislature intended to give them power to lay out a road over this creek, in the same manner and by the same proceedings that are required in the laying out of other highways. It would require the clearest and most explicit language to lead us to the conclusion that the Legislature intended to dispense with all the usual proceedings and safeguards, and to take this particular case out of the general provisions of the statute on the subject of highways. The special statute simply gives the power to lay out a highway over a spot, where before they could not do it, but in the laying out they must follow the requirements of existing laws in reference to the laying out of ways.

Report not accepted.

Appleton, C. J., Cutting, Danforth and Walton, JJ., concurred.