We assume, that, sometime prior to the year 1860, the Commissioners had laid out and established a public highway leading from town to town, a part of which was located within the town of Prospect.
If appears that the selectmen of Prospect, for themselves and the inhabitants of that town, presented a petition to the Commissioners at their April term, 1860, representing that the public good required an alteration in the highway so located in their town, between certain termini, and requested such alteration. Whereupon the Commissioners, after due notice to all parties interested, and other due proceedings had, refused to make the alteration prayed for. Thereupon an appeal was taken to this Court, and entered at the October term, 1860, when, in pursuance of the statute, a committee was appointed, who, in the legal discharge of their *86duties, and, after performing the same, at the May term, 1861, reported "that the judgment of the Commissioners should be in whole reversed, and that the prayer of said petitioners should be granted.” This report was then accepted and duly certified to the Commissioners.
Under such circumstances, what duties was it incumbent on the Commissioners subsequently to perform? By R. S. of 1857, c. 18, § 36, it is provided that — " If the judgment of the Commissioners is wholly reversed, they shall proceed no further, — if their judgment is affirmed in whole or in part, they shall carry into effect the judgment of the appellate court, as if made by them.”
Here we see that the Committee wholly reversed the judgment of the Commissioners, after which they were prohibited from proceeding further. Under the section cited, their further proceeding was a nullity, and the Commissioners were legally justified in disregarding it; for it is only when their judgment is affirmed, in whole or in part, that they shall carry into effect the judgment of the appellate court, as if made by them. Such a contingency has not occurred. The Commissioners’ judgment in this new petition has only been reversed, and there the matter stands. The old highway as originally established remains intact, and the appellants under the section cited would be without remedy.
But the Legislature of 1859, perceiving the defect in the prior law, by a statute of that year, c. 103, amended § 36 of c. 18, so as to read as follows : —
"If such judgment is wholly against the prayer of the original petition, the Commissioners shall proceed no further thereon; but, if the judgment is otherwise, they shall carry it into effect as if made by them.”
It is to be presumed that the Commissioners have overlooked this change in the law of 1857, otherwise they are without excuse for disregarding it. The judgment of this Court, based upon the report of the committee, was not wholly against the prayer of the original petition, but whol*87ly otherwise, and the Commissioners were bound by their oath of office to carry that judgment into effect, as if made by them, which would be to grant the prayer of the petitioners, but they have neglected to do it, and may have subjected themselves to our writ of mandamus upon the petition of the injured party.
In the petition now before us, and with which we are more immediately concerned, it is alleged that the Commissioners are about proceeding to appoint an agent to open and make that portion of the highway embraced in the original petition for the alteration, and the prayer is, that they be restrained from so doing, and also from issuing their warrant of distress against the inhabitants of Prospect, in whose town that part of the way was originally located, " until their right by law to make such appointment and issue such warrant, can be heard, and shall be determined by this Court.”
At the hearing before the Judge at Nisi Prius, at the January term, for the county of Waldo, the parties appearing agreed that " the facts in this case are fully stated in the petition.” The respondents filed no answer and offered no evidence. Whereupon the Judge granted the prayer of the petitioners and ordered the writ of injunction to be issued. To which ruling exception was taken. The case has been fully argued by the counsel for the petitioners and submitted without argument by the counsel for the respondents, but the exceptions show that, before the Judge, he contended that, on the facts disclosed and on legal principles, the prayer should not be granted.
His propositions may be considered in the nature of a general demurrer to a bill in equity, and the petition certainly appears to embrace some of its elements. The question then arises, has this Court jurisdiction? If it has, it would have the right to grant a temporary injunction (and none other is prayed for) either in term time or in vacation, and to which no exceptions would lie. It would be liable to be dissolved at any subsequent time for good cause shown, *88or continued from term to term until the whole subject matter was disposed of, and then either dismissed or made perpetual. , .
We have seen that the Commissioners, (these respondents,) have disregarded the judgment of this Court, which directed a material alteration, and are attempting to enforce their own judgment as paramount to the laws of the State. Such a proceeding might be exceedingly hazardous for all parties concerned; to the respondents, for issuing a warrant of distress not authorized by law, to the agent, in expending money which he might never collect, and, unless there be some remedy, those contingencies may happen ; whereas, if we temporarily suspend proceedings, the error on the part of the respondents may hereafter be corrected by their making the alteration and these petitioners making the road, either voluntarily or by legal compulsion.
This Court " has the general superintendence of all courts of inferior jurisdiction, for the prevention and correction of errors and abuses, where the laws do not expressly provide á remedy. It may issue writs of error certiorari, mandamus, prohibition, quo warranto, and all writs and processes necessary for the furtherance of justice or the execution of the laws.” R. S., c. 77, §§ 5, 6.
We have jurisdiction, then, unless the laws expressly provide a remedy. They do not, for no Legislature ever contemplated such a state of facts. The writ of mandamus might have prevented the evil, but now, before such writ could be issued, the old highway may have been made. The only remedy for the time being is the writ of prohibition. Exceptions not sustained.
Temporary injunction to he issued.
Appleton, C. J., Davis, Kent, Walton, Dickerson and Barrows, J J., concurred.