The opinion of the Court was delivered June 3, 1843, by
Shepley J.— The petitioner, with another, applied to the County Commissioners at their December Term, 1839, stating, that the selectmen of the town of Vassalborough unreasonably refused to lay out a road from their farm to the public road, and asking that such a road might be laid out and 'established. The Commissioners notified and heard the parties; and in August, 1840, decided, that common convenience did not require, that the road should be laid out; and at the next term their report was accepted, and the petitioners were ordered to pay the costs. The Commissioners do not appear to have clearly distinguished between public highways and private ways. It is not necessary, that the common convenience should be promoted, in order to authorize the establishment of the latter description of ways. It is now contended jn behalf of the petitioner, that the County Commissioners had no jurisdiction at that time of the subject matter of the petition. By the act of 1821, c, 118, <§> 10, jurisdiction was given to the Court of Sessions in such cases. .And by the act of 1831, c. 500, § 3, that jurisdiction was transferred to the County Coiminissioners. The act of 1839, c. 367, provided, that “no board of County Commissioners shall have power to lay out any *381road, or part of a road, in any town or plantation in this State, unless said road shall connect said town or plantation with some other town or plantation ; or unless said town or plantation shall refuse to lay out a road for any person or persons from some town or county road to the lot or lots of land, on which such person or persons may live.” The act would seem to have been drawn without much regard to the former acts upon the same subject. Its provisions were extraordinary, and they have not been incorporated into the Revised Statutes. By it the Commissioners were deprived of all power to lay out roads except in cases of two descriptions. The first class of cases was, where the road should connect one town or plantation with another; and the second, where a town should have refused to lay out a private way from a town or county road to the lot or lots of land, on which the petitioners should live. The argument of the Attorney for the county is, that such could not have been the intention, because a town was not authorized to lay out roads, but only to approve and allow of them wdien laid out by the Selectmen. And it is true, that if the statute were to receive a construction perfectly literal, the commissioners would have had power to lay out roads only in one class of cases, for there was no such class, as was contemplated by the words used in the second provision. And yet it is clear, that it was the intention to authorize them to revise the doings of towns in certain cases, when they had refused to act favorably for persons, wdio might desire roads from a town or county road to the lots on which they lived. And there being no such cases, where the Selectmen had not acted in the first instance in laying them out, the Legislature must have regarded the town as laying out the roads, when, according to the language of former statutes, it had approved and allowed them. As the roads could not be legally laid out and established by the Selectmen without the action of the town, the framers of the act seem to have regarded such action as the laying out of the roads.
It is also contended, that by the words, “ unless said town or plantation shall refuse,” the acts of the Selectmen, when *382they refuse, should be included, on the ground that their acts are for that purpose to be considered as the acts of the town. Such a construction would have the effect to abolish all distinction between the acts of the Selectmen and those of the town in relation to this matter; while in all the previous legislation they were carefully separated and distinguished. The tenth section of the act of 1821, made provision for an application to the Court of Sessions to revise the proceedings of the Selectmen ; and the eleventh section for an application for a. revision of those of the town. And to the latter class of cases only, the act of 1839, seems to have alluded. The Selectmen were still left with power to lay out private ways as formerly, and their towns with power to act upon their reports; while the act took from the County Commissioners the right to revise the proceedings of the Selectmen in case of their refusal to lay out such a way; and the power to revise the proceedings of their towns, when their record was laid before them, and they refused to approve of the way, in all cases, except where the way prayed for should lead from a town or county road to the lot or lots of land, on which the petitioners should live.
But if the construction contended for by the attorney for the county could be adopted, the Commissioners would have had no power to revise the proceedings of a town except in this latter class of cases. The petition to the Commissioners in this case states, that the way desired would lead from their farm to the public road, but it does not allege, that they lived upon the farm. They might own it, “ and suffer great delay in getting from their farm to the public road” without living upon it. Every allegation of the petition may be true without exhibiting a case, upon which the Commissioners, even under such a construction, would be entitled to act. And it appears to have been the design of the legislature, whatever may be the construction of the act in other respects, to prohibit the Commissioners from establishing or acting upon such ways, unless the petitioners lived upon the lots, which were to be opened to a town or county road. The record does not therefore *383present a case, on which the Commissioners were authorized to act; and the writ of certiorari, must be granted.