French v. County Commissioners

| Me. | Jul 1, 1875

Barrows, J.

The true intent and construction of statutes which have been revised and condensed may often be best ascertained by an examination of the original enactment.

Especially, in the revision of 1857, the principal, object being “to revise, collate and arrange all the public laws of the state, and, in revising, to condense as far as practicable” — a mere change of phraseology is not to be deemed a change of the law unless there was an evident intention in the legislature to work a change. Hughes v. Farrar, 45 Maine, 72.

The design of the legislature to secure a speedy determination of these appeals is perhaps more readily apparent, but hardly more certain, in the original statute than in the subsequent revisions. Public Laws of 1847, c. 28, by which these appeals were first granted, provides in § 1, that “any person or corporation aggrieved” in these cases may appeal “under the limitations and restrictions contained in this act;” in § 2, (among other things,) for the appearance of parties interested before the commissioners, “either jointly or severally;” for an appeal to be taken by any party so appearing after the decision of the commissioners is entered on record, and before the term of court “then next to be holden in said county, and not afterwards ;” for the entry of such appeal at that term, “and not afterwardsin § 3, that “it shall be lawful for the court in such county, at the term when such appeal shall be entered as aforesaid, and not afterwards, to appoint a special committee,” &c.

In the R. S., of 1857, c. 18, §§ 34 and 35, we find this triple repetition of the phrase “and not afterwards” avoided, and all these provisions together with those of chapter 152, laws of 1857, (authorizing a new appointment if one of the committee dies, refuses to act, or becomes interested,) greatly condensed, but without essential change. Their purport and effect remain the same. The construction of this revision was the vital point in Friend, appellant, v. County Commissioners, &c., 56 Maine, 262, and the court there held that it is for the appellant to see to it that a competent committee is appointed at the term when the appeal is entered. This was the ground of the decision, and not a dictum of the judge who drew the opinion, as the counsel for the appellants here claims. In that case the judge at nisi prius had appointed a new committee, viewing it as a matter addressed to his discretion, and the question directly before the court was whether it was lawful for him to make such appointment after the first term in any case except those expressly provided for in the statute where some member of the committee dies, refuses to act, or becomes interested; and it was held that it was not lawful. Had it been competent for him to make the appointment, his right to exercise his discretion could not have been questioned on exceptions.

This decision settled the construction of the statutes of 1857 on this point. "When a statute has received a judicial construction, and is afterwards re-enacted in the same terms, it is to be understood that the legislature have adopted the construction given it. Myrick v. Hasey, 27 Maine, 9; Osgood v. Holyoke, 48 Maine, 414; Rutland v. Mendon, 1 Pick., 154.

Sections thirty-seven and thirty-eight of chapter eighteen in the revision of 1871, are exact transcripts of §§ 34 and 35 of chapter 18 of the R. S., of 1857, with a marginal reference to the case above cited, among others.

The words “not afterwards” have relation to the time and term when the court may appoint a committee. It is at the term when the appeal is entered, and not afterwards — exactly as originally provided with triple emphasis in chapter 28 of the Public Laws of 1847.

The legislature have not seen fit to make the prompt decision of these appeals in any manner dependant upon the caprice, carelessness, or procrastinating disposition of the parties or their counsel.

Neither have they made provision for a case where, for any cause, the presiding judge fails to appoint a committee at the term when the appeal is entered. The mandate of the statute is peremptory, and the only contingencies provided for are those therein named. It is not for ns to add to them. The remedy, being given by the statute must be pursued “under the limitations and restrictions contained in the act.” The appellants’ counsel should have called the attention of the court to the case in season to have the motions acted on at the first term. He not only failed to do this, but allowed the second term to pass without action of any sort.

The appeal was rightfully dismissed, for the time had gone by when it was possible to prosecute it with effect.

It is not necessary in this case to determine whether the claim of appeal was radically defective or premature.

Exceptions overruled.

Appleton, C, J., Walton, Danforth, Yirgin and 'Peters, JJ., concurred.