Machias River Co. v. Pope

35 Me. 19 | Me. | 1852

Rice, J.

— This is assumpsit for toll on logs which the defendants run over certain dams and improvements made by the plaintiffs on the Machias River. The company was incorporated March 4th, 1840, and in 1846, July 30, an Act was passed additional to the original Act of incorporation.

The second section, of the original Act of incorporation, provides for levying a toll. The third section gives the company a lien on all logs that pass their works, as security for tolls, or the right to bring an action of assumpsit to collect the same.

Section eleven provides “ that for the purpose of ascertaining the cost of the improvements contemplated in this Act, and ascertaining the amount of tolls chargeable, according to the second section hereof, the amounts showing said expenses shall be audited by the County Commissioners, for the county of Washington ; and no accounts shall be allowed for repairs.”

Certain original papers, purporting to be adjudications and certificates of the County Commissioners of Washington county, auditing plaintiffs’ accounts of improvements, were offered at the trial, and objected to by defendants, as not being matter of record, but were admitted by the Court.

The only point in defence insisted on at the argument was, that the plaintiffs’ accounts for improvements should have been audited by the County Commissioners, acting as a court of record, and that the whole proceedings should have been recorded -by them, for the information of the public. The auditing and recording by the Commissioners, it was contended, were conditions precedent to be performed by the company before any right to demand or receive toll accrued to them.

It was not controverted that Ichabod Bucknam and Joseph Adams were County Commissioners for the County of Washington in 1842, nor that in January of that year, those men did audit the accounts, with the vouchers of the company for expenditures made in improving the Machias river, under the provisions of the Act of 1840, and certified the amount of those expenditures; nor was it claimed by the plaintiffs that those accounts or the proceedings of the Commissioners in auditing them, had been recorded with the records of the County Commissioners.

Does the Act of incorporation require that these proceedings should be made matter of record ? It certainly does not so • require in terms. It would seem to have been the intention of the Legislature to restrict the corporators in the imposition of tolls to a rate proportionate to the amount actually expended upon their improvements. And as a measure of public security the Act provides that the cost of these improvements shall be examined and certified by the County Commissioners.

In this proceeding there were no adversary parties. The auditing was not to settle a matter of litigation, but was rather in the nature of a special commission provided by law, to examine the accounts of the plaintiffs, connected with their improvements, and certify the same as a basis upon which the company would be authorized to found its claims for tolls. To audit, is to examine an account, compare it with the vouchers, adjust the same, and to state the balance, by persons legally authorized for the purpose. It is not a judicial act.

The intention of the Legislature may reasonably be presumed to have been to designate persons to perform this duty, whose character and position in society was such as to entitle them to public confidence. The acts required do not fall within the legitimate scope of official duty prescribed by law to the courts of County Commissioners, and cannot by implication be deemed a part of their official duty. Had the Act required those accounts to be audited by the Judges of the Supreme Court, or a Judge of Probate, it would, we apprehend, hardly be contended, that it thereby would become the duty of those courts to enter upon their records a transcript of those accounts and the adjudications thereon.

This view of the case receives support, by a reference to the additional Act of 1846, in which provision is made for application to the County Commissioners in certain contingencíes, and by which they are specially empowered to act judicially, to issue notices, and to hear parties with their witnesses, and finally to adjudicate between them and award cost to the prevailing party.

From these considerations we are of the opinion that the auditing prescribed in the eleventh section of the original Act of incorporation was not intended by the Legislature to fall within the sphere of duty imposed upon County Commissioners, as such, but rather upon the men as individuals, who should, for the time being, hold those offices. Their proceedings, therefore, while acting in the capacity of auditors, were not matter of public record, the statute not having so provided.

Exceptions sustained and a new trial granted.

Shepley, C. J., Wells and Appleton, J. J., concurred.