83 Me. 514 | Me. | 1891
By 11. S., c. 18, § 41, county commissioners may lay out roads through lands not within any town or plantation required to raise money to make and repair higlrways, all expenses for making the same to be paid by the owners of the lands. The mode of proceeding in such case is pointed out in succeeding sections. By E. S., c. 6, § 78, provision is made for assessing the expenses upon such lands and for their collection.
The clause of the section that is questioned in this case, reads
The present proceeding is a petition for certiorari, seeking to annul the record of a road, established by the commissioners of Aroostook county, leading from New S weden to Fort Kent. There was no appeal either from the act of laying out the road or of levying the assessments. The defect alleged to exist' in the proceedings is that the assessments were prematurely made. The exact question is, whether "the first regular session after a road is Mid over” lands, may be the same session at which a report of the establishment of the road is filed. The petitioner claims the assessments should be made at a subsequent session. The respondents claim that they should be made at the first regular session after the action of the commissioners in locating the road upon the face of the earth, which would necessarily be the session at which their report is filed. In other words, one party claims it must be the session next after the report of location, while the other claims it to be the next after the fact of location ; one act being the evidence of the thing done, the other the thing itself.
The question is not free of doubt, and difficulty. Our opinion, however, is that the commissioners committed no mistake in adhering- to a literal version of the text of the statute, such opinion being derived principally from an examination of the different preceding statutes out of which the present statute has descended. The history of a statute gives great aid in determining its construction.
The statute in question had its origin in § 21, chapter 118 of the laws of 1821, by which section the liability of owners was established for the expense of constructing roads across unincorporated lands. It provides that the court of sessions "may proceed to lay out such highway in the manner prescribed by law, and shall cause an assessment to be made on such tracts of land” sufficient to defray the cost of the road and other expenses.
The system of appeals in such proceedings is a more modern growth. All the provisions of the act of 1821, were explicit and clear. Borne difficulty has been experienced in giving a construction to later statutes on the subject, from the fact that different rights of appeal have been snperadded to them, which, in their practical operation, have not been entirely consistent with other provisions. Can there be any doubt, that in the act of 1821, the location of the road and the levying of the assessments were regarded as one act, one result, all the consecutive steps being parts of one adjudication ?
The act of 1821, became embodied in chapter 25 of revised statutes of 1841, in the two following sections :
"Section 47. Whenever any highway shall belaid out by the county commissioners, through any unincorporated tract of land, the said commissioners shall decide, whether, in their opinion, such tract, or any part thereof, will be thereby enhanced in value. Said commissioners may, upon a plan of said tract, whether consisting of one or more townships, make as many divisions, as they may think equitable, conforming, as near as convenient, to known divisions, or separate ownerships; and they may assess upon each division, which they shall consider to lie enhanced in value, towards the expense of making and opening such road, such sum, as, in their judgment, shall be proportionate to the value, and the benefits likely to result to it, from the establishment of such road.
"Section 48. Said commissioners shall, thereupon, cause an assessment to be made on such tracts of land, township or plantation, or divisions thereof as aforesaid, if they see cause, at such rates per acre, as they shall judge necessary for making or opening such highway, and defraying the necessary expenses attending the same.”
Next comes the revision of the statutes in 1857, before which date an appeal from location had become allowable by law. The phraseology of the provision touching assessments is again changed, the substance of it remaining unimpaired, § 33, chapter 18, reading as follows :
" When a way is laid out over such lands, they shall decide whether any tract or part thereof will thereby be enhanced in value; and they may make as many divisions as are equitable, conforming as nearly as convenient to known divisions or townships; and assess upon each division adjudged to be enhanced in value a sum proportionate to the benefits likely to result to it from the establishment of the way. The assessments may be made at such l’ates per acre as they judge to be necessary for making and opening the way, and for paying the expenses attending it.”
The phrase here is, when a way is "laid out over” such lands. This section instructs the commissioners what to do in connection with the act of locating the road as a necessary part thereof or adjunct thereto. The words "laid out” do not imply that a location has been made by any written report, because certain questions are to be considered after the road is "laid out,” the decision of which is to be made a part of the report. In locating a road it is indispensable that the commissioners decide at whose expense the road shall be made, and whether the lands crossed by the road will be benefited thereby, and their report must show these facts. Pingree v. County Commissioners, 30 Maine, 351.
The act of 1868, ch. 191, constituted a more radical change,
The revision of 1871 retains substantially the provisions of the act of 1868, to be found in sections of two chapters of the statutes instead of in one as before that time. It. S. of 1871, c. 18, sec. 32; c. 6, sec. 51. Then for the first time appears the phrase as in the present statutes, " when a road is laid over,” —the previous phrasing having been "laid out over.”
Then came the act of 1876, which laid the foundation for the present controversy, in amending section fifty-one of chapter six of the revised statutes of 1871, by striking out the word "immediately” and inserting instead the words "at their first regular session; ” the substituted requirement being that the commissioners, when they laya road over unincorporated lands, shall at their first regular session afterwards levy the necessary assessments. The meaning of this amendment is the key of the question to be solved.
The present revised statutes repeat the provision in the same words. The words are, at tha first regular session, not the next, after the road is laid over the land. In the light of previous legislation, does this not mean that the assessments are to be made as soon as the work can be done at any regular session of the commissioners occurring or existing after their report is
What expediency would there be in the delay that a continuance would entail ? Commissioners can exercise a better judgment on the questions presented for their decision, acting immediately after hearing the parties and examining the land. It is an advantage to all parties to have an early knowledge of the result on the questions of both location and assessment. The latter may be so satisfactory that there will be no disposition to appeal from either decision. If no appeal be entered, a delay of six months before other proceedings following assessment can be instituted, which consume a long period for their accomplishment, would seem to be time inconsiderately lost. It has always been required to include an assessment of damages in a report of laying out a highway, and why not important to assess benefits as expeditiously? In the case of this road, if there were damages as well as benefits to be assessed, the commissioners wore
It is urged that persons interested had no notice that the assessments were to be made. They had as much notice as they would have, whether the proper occasion for their appearance be at one regular session or another. Only one notice is ever given in any ease, and that brings parties into court, where they are supposed to be in attendance during all subsequent stages of the proceeding.
The meaning of the words "laid out” has been discussed in the arguments. The words here are "laid over,” and it is very likely the latter phrase was intentionally used as better expressing the idea to be conveyed. The words " laid out ” used in reference to ways do not always have the same signification. They will be found to be used as descriptive of all conditions of a way, such as a way voted to be built, a way being built, or a way built. The context usually determines the meaning of the expression.
It is urged by the petitioner that the case of Appleton v. County Commissioners, 80 Maine, 284, makes in his favor on this question. We think it may have that tendency in a portion of the argument of the court, but the result of the case does not necessarily have such a bearing. The question presented in this case was not considered or noticed in that, although slumbering in the papers of that ease. The court hesitated, in the determination of that case, which of two theories to adopt as best applicable to it. One theory was that the statute requires the commissioners to proceed with the question of benefits and decide it independently of other issues and questions, so that their determination would stand, unless modified upon appeal therefrom, or rendered nugatory by the location failing to be sustained on appeal. By that mode the commissioners would perform finally all the duties incumbent on them in the premises. 'That mode would have its advantages, as readily seen in the light of the present investigation. The assessments would be conditionally made, dependent on the validity of the location.
But, as before said, that case and this, in their results, will be found not to disagree. On the contrary, the rules of procedure deducible from them will be consistent and practicable.
Petition denied with costs.