State v. Wellman , 83 Me. 282 ( 1891 )

Haskell, J.

Proceedings for the laying out of a highway in the County of Franklin were "confirmed, closed and recorded” by the court of county commissioners on the 26th of December, 1883. The way was thereby laid out in the towns of Jay and Chesterville, and three years from that date allowed those towns to build and open the same.

August 13, 1889, the county commissioners, upon proper petition, after due notice, to the parties interested, refused to appoint an agent to open and make the road, the towns charged by law with that duty not having done so, as they were required in such case by statute to do; therefore, a petition for mandamus was presented to this court, to compel the county commissioners to perform the duty imposed upon them by statute. At nisi prius the writ was ordered to issue, and exceptions to that order are now presented.

I. It is objected that the county commissioners were not summoned as required by order of court. The order required that they be served with an attested copy of the petition, and such copy was delivered to their chairman while the full board was in session. It is hard to see how a more complete service coidd have been made.

II. It is objected that the three years within which the road should have been built by the towns liable to build it had not elapsed prior to this proceeding, inasmuch as a petition to discontinue the same intervened, thereby, meantime, interrupting the running of the statute.

When the commissioners, pursuant to the mandate of the appellate court, on the 26th of December, 1883, entered up their judgment that the proceedings on the petition for the laying out of the way "be confirmed, closed and recorded,” "the located way became an established fact. Hallock v. Franklin, 2 Met. 559.

"In the absence of any statutory limitation relating thereto, we perceive no legal objection to the commissioners entertaining a petition for the discontinuance of a legally located highway at any time after the location has become an established fact. The subsequent discontinuance of the highway, whether very soon after it has been established by the adjudication, or after a long lapse of time, is a new, substantive, distinct, official act. It does not rescind or annul the former proceeding, but it assumes its continued existence as the basis of the discontinuance.” Millelt v. County Commissioners, 80 Maine, 429. In that case it was held that the petition to discontinue the road, now interposed as a defense, might be considered upon the ground that it was a new proceeding, that in no way affected the original laying-out of the wTay; and that it could be presented the same as though the road had already been built. If this be so, it could not suspend or interrupt the running of the statute time, within which the road should have been built and opened. There could be no assurance that the way already laid out, already "an established fact,” would be discontinued, and the result shows that it was not discontinued. The original proceeding has not been affected in the least by the subsequent proceedings seeking a discontinuance of the way; and it could not be, for the foundation stone of the latter is the existence of a way. It seeks to destroy the way, not the judgment that established it.

It may be said that it would be imprudent for commissioners to order a road built, which they intended, on proper proceedings, to discontinue. Until actual discontinuance, their duty is unchanged. The law does not wait for inaction, or assume the final result of their proceedings. If, in such case, this remedy be sought, the exercise of a sound discretion, that always governs the extraordinary remedy by mandamus, will afford complete and exact justice. " Sufficient unto the day is the evil thereof.”

More than three years had elapsed from the time when the way was laid out before the commissioners entered their discontinuance of it, that an appeal shows should not have been entered at all. Instead of attempting to discontinue the way, they should have ordered it built.

The case of Coombs v. County Commissioners, 71 Maine, 239, if rightly reported, is confused in statement, and is not an authority against the doctrines of this case.

The plenary power of this court, under 11. S., c. 77, over the proceedings of all inferior courts, by appropriate process, so clearly authorizes this procedure by the Attorney General, that further consideration of it is unnecessary.

Exceptions overruled.

Peters, C. J., Walton, Virgin, Libbey and Whitehouse, JJ., concurred.