Chapman v. County Com'rs

• Decision Date: 08 March 1887
• Citation: 79 Me. 267,9 A. 728
• Parties: CHAPMAN and others v. COUNTY COM'RS.
• Court: Maine Supreme Court

9 A. 728

79 Me. 267

CHAPMAN and others

v. COUNTY COM'RS.¹

Supreme Judicial Court of Maine.

March 8, 1887.

From supreme judicial court, York county.

Petition for certiorari, based on the several grounds discussed in the opinion.

R. P. Tapley, for plaintiff.

L. S. Moore, for defendant.

PETERS, C. J. Can a county commissioner act with his associates in receiving a petition, ordering notice upon it, taking a view under it, adjudicating in favor of a road asked for by the petition, and his successor in the office act afterwards in his place in completing the proceedings to a finality, and the record be legal? This inquiry might perhaps be avoided, in the case before us, by force of the fact that two other commissioners, a quorum of the board concurred in the steps taken throughout, thus rendering their action valid; but, as the same question may occur at most any time again, from the present election law requiring commissioners to be chosen singly in consecutive years, instead of all of them in the same year, we are disposed to put the question at rest at this opportunity. We see no irregularity in such proceedings. The board are a court, and the court is not dissolved by one commissioner going out and another coming in. It continues to be the same court, though its personality be changed. One commissioner participates in the earlier questions arising in the proceedings, and helps decide them. Those questions are then disposed of. We see no need of going over that ground again, any more than in any other court, where one judge at one term settles a preliminary question, and another judge at another term tries the case in its subsequent stages. Of course, the first action must be, in its nature, separable from the later acts.

Counsel for the petitioners contend that the record does not show specifically what part of the proceedings each commissioner participated in, and that it must appear from the record, and cannot be supplied by the answer of the respondents. His point is that the adjudication that the road is demanded by public convenience and necessity is merely a legal conclusion,—not a fact,— and that legal conclusions can appear only of record. We think it to be a fact that an adjudication was made, and that what the adjudication was would be a fact. Its legal effect would be another thing. But we also think the doctrine of the case of Levant v. Commissioners, 67 Me. 429, does not admit of so illiberal an interpretation as counsel puts on it. On the hearing of a petition, the oath of the respondents, in matters officially known to them, is as good as a record to supply mere deficiencies. The inference is that they would amend their...