Upon an indictment against a town for neglecting and refusing to rebuild and maintain a bridge, part of an ancient highway, a declaration by the town council of the town, that the portion of the highway including the bridge had ceased to be useful to the public, is not conclusive of the fact, so as to discharge the town from the obligation to rebuild and maintain the bridge; the 26th section of Ch. 43 of the Revised Statutes expressly making the authority of the town councils to make such a declaration, dependent upon the fact of the uselessness of the highway to the public.
AMES, C.J.
It is a general principle in application to the acts and doings of official boards and inferior tribunals, that when their jurisdiction is made by law to depend upon the preexistence of some fact, their action is not to be deemed conclusive of such fact, unless expressly, or by necessary implication, so made. The declaration of a town council under the statute before us calls, in our judgment, for the application of this principle. The statute expressly makes the authority of the town council to declare a highway useless, contingent upon the fact, that it has ceased to be useful to the public; and when we consider that the statute makes no provision for notice to parties interested, nor for an appeal, and the consequences that may follow, both to individuals and the public, if, upon a simple declaration of a town council, any highway in the country or street in a city, however valuable or necessary, may revert at once to the owners of the land encumbered by it, and the towns, in consequence, be absolved from further obligation to repair and amend it, we are confirmed in the conclusion, that the General Assembly intended that the fact should remain open to examination, when effect from the declaration of the fact was claimed.
It is the concurrence of the fact with the declaration, which alone can make the exercise of such a power tolerable; and full operation is given to it by requiring the concurrence of the declaration with the fact, in order that the owners of adjacent lands and the public may know when the rights of the one begin, and of the other cease.
The objection, that upon this construction, the rights of both the owners and the public remain open to contestation, notwithstanding the decree, is, in effect but saying, that these cannot be concluded by the decree of a town council without a hearing. The reply is easy, — that to allow conclusive effect to such a decree would be worse, upon the principles of natural justice, than many hearings. In fine, considering the language and purpose of the statute, and the character and effect of the declaration which it authorizes the town councils to make, we have no doubt but that the judge presiding at the trial rightly construed the statute, and therefore overrule this motion for a new trial.