Inhabitants of Webster v. County Commissioners

Yirgin, J. By R. S., c. 18, § 4, county commissioners are required, after laying out a highway, to “make a correct return of their doings.” By § 5, “their return, made at their next regular session after the hearing, is to be placed on file, and to remain in the custody of their clerk for inspection without record” in order that any land-owner aggrieved by the commissioners’ estimate of damages may seek the statute redress. If no such redress is sought, on or before their next regular term, the proceedings are to be closed and “recorded.” But by § 6, if an increase of damages is sought within the time mentioned, the ca.se is to be continued until a final decision respecting damages is made ; and then 9 if the commissioners do not discontinue the location because of excessive damages, but determine that the location shall take effect [29] subject to the damages assessed, their “whole proceedings are to be recorded.” By § 37, parties interested may appeal from the decision of the commissioners in locating a highway, provided the appeal be taken “at any time after it (i. e., the return of the commissioners) has been entered of record, and before the next term of the supreme judicial court in said county.” Such were the provisions regulating the time for taking an appeal until January 29, 1873, when § 37 was amended by striking out the words “it has been entered of record,” and substituting therefor the words “their return has been placed on file.” Pub. Laws of 1873, c. 91. So that in cases commenced after January 29, 1873, at least, appeals must be taken at any time after the return of the commissioners has been placed on file and not after it has been recorded, &c. In the case at bar, the return of the commissioners was seasonably made and “placed on file” with their clerk, to wit, at their October term, 1870. At any time after said October term and before the January term, 1871, of the supreme judicial court, parties interested might have appealed, had the provisions of the act of 1873 been then in force. But they were not. On the contrary as the statute then stood, no appeal could be taken until sometime after the “return was recorded,” to wit, March, 1873, and before the April term, 1873, of, the supreme judicial court. And when that time arrived the statute allowing an appeal then had been repealed and an appeal was allowable only at a time which had long before elapsed. The repealing statute was unconditional in its terms, containing no saving clause. This remedy of the appellants was taken away, therefore, unless the case comes within the provisions of the last clause in R. S., c. 1, § 3, which provides that “actions pending at the time of the passage or repeal of an act, shall not be affected thereby.” Is a petition for the location of a highway, pending before a board of county commissioners, an “action” pending, within this statute ? [30] A “right of action” has been defined in the Roman law as jus persepuendi in judicio sibi debeturP Coke declared that “an action is a legal demand of a man’s right.” And the action itself has been long considered to be the prescribed mode of enforcing a «right in the proper tribunal. The pending petition is denominated a “case” in § 6. But by R. S., c. 81, § 2, “all civil actions except scire facias and other special writs, shall be commenced by original writs,” &c.; thus confining actions to courts of law. We think, therefore, that the word “actions” in c. 1, § 3, does not include petitions pending before the board of county commissioners, for the location of highways ; and that the light of appeal was taken away from these appellants by the change of the statute above mentioned. This may prove somewhat of a hardship upon them; bxxt the responsibility is not upon us; and neither can we aid in making shipwreck of the law because of the hardship. Were the question one of damages instead of location, a more sex'ious question might perhaps ax’ise. The change iix the statute cannot simply have a prospective opex*ation like some new positive enactment, for the change consists in a repeal of one provision and the substitution of another. Exceptions sustained. Appeal dismissed. Appleton, C. J\, Walton, Dickerson, Barrows and Peters, JJ., concurred.