
    Inhabitants of Lanesborough vs. County Commissioners of Berkshire
    By St. 1841, c. 105, the actual cost, and not the estimated expense, of making and altering highways, is to be divided between towns and the county, by the county commissioners, as they shall decide to be just and reasonable. Therefore, where a board of county commissioners located a highway, estimated the expense of making it, directed a town to make it, and ordered that one half of the estimated expense should be paid out of the county treasury 3 and after the highway was made and accepted, the actual expense was found to be less than the estimated expense, and another board of commissioners directed that one half of the actual expense should be paid by the county, and drew an order therefor in favor of the town 3 it was held that this proceeding was legal and equitable 5 and a petition of the town for a mandamus, requiring the commissioners to draw an order for one half of the estimated expense, was dismissed
    Petition for a writ of mandamus, to be directed to the county commissioners, requiring them to issue an order on the county treasurer for the payment to the petitioners of a sum of money for making a county road.
    The following agreed statement of facts was submitted to the court: On the 30th of July 1841, the board of county commissioners, on the petition of Solomon Bulkley and others, surveyed and finished the location of a county road in Lanesbor-ough, estimated the cost of making it at $ 2 per rod, and made this entry on the record of their proceedings: “ The town of Lanesborough will make this road, and, when completed, shall receive one half of the estimated costs. The road to be made by the first of June 1842, to the acceptance of the county commissioners.” The length of said road, as then estimated by said commissioners, was 716 rods and 15 links. Under the aforesaid order, the petitioners, by their selectmen, entered mto a written agreement with Orestes Beach to make said road, to the acceptance of the county commissioners, and to pay him therefor $ 1-50 per rod. Said Beach made the road under said agreement, and, on the 30th of June 1842, at the request of said selectmen, the respondents, who had succeeded the former board of commissioners, viewed the road so made, and accepted the same as complete, and reported the same to the county treasurer. On the same day, said selectmen certified to the respondents, on the back of their said agreement with Beach, that they had measured the whole length of road made by him, and found the same to be 685 rods, and requested the respondents to apportion the expense of making said road upon the town and county, and allow to the town, on the books of the county treasurer, such sum as should be awarded to the town on account thereof. At the following July session of the respondents, it was adjudged and determined by them, that one half of the actual expense, as certified by said selectmen, as the expense of said road, under the agreement aforesaid, should be borne by the county; and the respondents passed an order upon the county treasurer to pay to the petitioners said proportion, amounting to #513-75. The selectmen received said sum from the county tieasury, on account of the expense of making said road.
    
      Bishop & G. J. Tucker, for the petitioners.
    By the Rev." Sts. c. 24, § 46, the expense of making or altering highways, “as it shall be estimated by the commissioners,” is to be apportioned by them between the town and county; the town not to be allowed more than “ one half of the estimated expense.” The St. of 1841, c. 105, has authorized the commissioners to order “ the whole or any part of the expense of making or altering a highway ” to be paid by the county. The word “ expense,” in this last statute, should be construed to rnean “ the expense as it shall be estimated,” according to the provision in the revised statutes. There is good reason for such a construction; as the calling of a jury may depend on the amount of damages that may be estimated.
    The St. of 1841 rendered valid the original doings of the commissioners, and their successors, the respondents, had no further authority in the matter, but to draw their order according to the determination of their predecessors, who located the road. They ordered that the town should receive one half the estimated expense, viz. $2 per rod, for 685 rods, which is $685.
    
    
      Barnard & Sumner, for the respondents.
    The St. of 1841, c. 105, was intended to alter the law of the revised statutes, the practical operation of which had been found to be inconvenient and unequal. That statute, though it probably had not been seen by the former board of commissioners, when they passed their order of July 1841, was binding on them, and rendered that order invalid. The respondents were therefore bound to disregard it, and in so doing, and in allowing to the petitioners one half of the actual expense which they had incurred, they have not only conformed to the law, and done what they deemed “ just and reasonable,” but have, in effect, done what the former board intended to do, viz. thrown only half the expense of the road on the petitioners.
   Shaw, C. J.

The St. of 1841, c. 105, makes it very clear, we think, that the county commissioners, in the present case, acted within the scope of their authority, and fully performed their duty to the town. The provision is, that “ whenever any highway shall be laid out or altered, or whenever any highway heretofore ordered by the county commissioners, in any county to be laid out or altered, shall hereafter be completed and accepted, said commissioners may cause the whole or any part of the expense of making or altering such highway, according as they shall decide to be just and reasonable, to be paid out of the treasury of such county, any thing in the 46th section of the 24th chapter of the revised statutes to the contrary notwithstanding.”

This statute alters the preexisting law, in several particulars. The cost to be apportioned is the actual cost, to be ascertained and ordered after the work is completed and the cost known not the sum estimated when the making or alteration of the way is ordered. It also gives the commissioners power to apportion more than one half of the cost upon the county, if they decide that it is just and reasonable. The only ground upon which the petitioners found their claim is, that when the road was ordered, the cost was estimated at $2 a rod, and the order directed that one half of that sum should be paid by the county. In this respect, those commissioners exceeded or mistook their authority ; and this part of their order imposed no obligation or duty upon the commissioners who subsequently accepted the road, after it was completed, and apportioned the expense according to the actual cost, without regard to the previous estimate. In this respect, the law supports the equity of the case; as it was manifestly never the intention of the commissioners, who made that estimate, to do more in favor of the town than indemnify them, from the county treasury, for one half of their actual outlay.

Petition dismissed.  