State v. Town of Cumberland , 7 R.I. 75 ( 1861 )

Ames, C. J.

It is a general principle in application to the acts and doings of official boards and inferior tribunals, that when their jurisdiction is made by law to depend upon the preexistence of some fact, their action is not to be deemed conclusive of such fact, unless expressly, or by necessary implication, so made. The declaration of a town council under the statute before us calls, in our judgment, for the application of this principle. The statute expressly makes the authority of the town council to declare a highway useless, contingent upon the fact, that it has ceased to be useful to the public: and when we consider that the statute makes no provision for notice to parties interested, nor for an appeal, and the consequences that may follow, both to individuals and the public, if, upon a simple declaration of a town council, any highway in the country or street in a city, however valuable or necessary, may revert at once to the owners of the land encumbered by it, and the towns, in consequence, be absolved from further obligation to repair and amend it, we are confirmed in the conclusion, that the General Assembly intended that the fact should remain open to examination, when effect from the declaration of the fact was claimed.

It is the concurrence of the fadt with the declaration, which alone can make tke exercise of suck a power tolerable ; and full operation is given to it by requiring tke concurrence of tke declaration witk tke fact, in order tkat tke owners of adjacent lands and tke public may know when tke rights of tke one begin, and of the other cease.

Tke objection, tkat upon this construction, tke rights of both tke owners and. tke public remain open to contestation, notwithstanding tke decree, is, in effect but saying, that these cannot be concluded by tke decree of a town council without a hearing. Tke reply is easy, — tkat to allow conclusive effect to suck a decree would be worse, upon tke principles of natural justice, than many hearings. In fine, considering tke language and purpose of tke statute, and the character and effect of tke declaration which it authorizes the town councils to make, we have no doubt but tkat tke judge presiding at tke trial rightly construed tke statute, and therefore overrule this motion for a new trial.