
    The Inhabitants of Springfield versus The Commissioners of Highways for the County of Hampden.
    
      Sept. 29th.
    Under St, 1825, c, 171, the commissioners of highways have power to supervise and review a road laid out and partly worked under authority from the Court of Ses eions, and to finish or discontinue the road, as they may think expedient»
    On the 8th of August, 1826, the selectmen of the town of Springfield presented a petition to the commissioners of highways for the county of Hampden, requesting them to-cause a road laid out in that county on the 22d of August, 1825, by authority from the Court of Sessions, to be constructed and finished, and to certify the expenses incurred therein to that court, in order that it might draw a warrant for the same on the treasury of the county.
    On the 4th of September, 1826, the petitioners had leave to withdraw their petition, as the commissioners considered it not within their jurisdiction.
    The inhabitants of Springfield now applied for a mandamus to the commissioners, commanding them to proceed to the supervision and review of the road and to cause the same to be constructed and finished, and to certify the expenses "thereof to the Court of Sessions.
    It was stated at the bar, that a part of the road had been worked and the residue been put under contract, before the petition was presented to the commissioners.
    
      Bliss and Willard, in support of the application.
    It is the intention of St. 1825, c. 171, that all roads laid out by the Court of Sessions previously to July 1826, when the statute went into operation, shall be made and finished by the com • missioners, at the expense of the county. They take the. roads in the condition in which they are left by that court. The provision that roads so laid out shall be subjected to the supervision and review of the commissioners, means, that they shall be made under their superintendence ; not that the commissioners shall revise the decrees of the Court of Sessions. The petitioners accordingly did not ask them to make such a revision, but to perform a duty which is merely ministerial and is imperatively enjoined on them by the statute.
    
      Sept. 30th.
    
    
      Rice, contra.
    
    The proceedings in the Court of Sessions had closed and the time for an appeal had elapsed, when the petition was presented, so that the case was not pending in that court within the last proviso in the 5th section of the statute. Neither does the case come within the first proviso, for the commissioners were not asked to supervise and review the road. The commissioners have power to put the county to expense, only in regard to roads which have been viewed and laid out by the commissioners themselves.
   Parker C. J.

delivered the opinion of the Court to the following effect. The commissioners object, that in the state m which this road was at the time when the statute went into operation, they had no jurisdiction in the case. They allege that the road did not come within the 4th section, which provides that they shall have power “to cause all roads located by them to be constructed and finished,” and it is true that this road was not located by them, but by the Court of Sessions, and so is not within those words. But in the next section it is said, that “ all roads laid out, but not worked, at the time this act takes effect, shall be subjected to the super-, vision and review of the commissioners aforesaid, and the said commissioners shall have all the powers, and the counties be subject to all the liabilities, in reference to such roads, as are provided for new roads by this act.” The legislature here had respect to roads located by the Court of Sessions, but not finished ; including as well those which had been partly worked, as those on which no work had been done, and thej meant to transfer all authority on the subject to the commissioners.

In the case before us the petition to the commissioners was, not to supervise and review, but to finish working the road ; and it is made a question whether they have power to recon- . .... _ „ sider the expediency of laying it out. The statute, we think, manifestly intends that they shall have such power. If they shall deem it proper that the road be made as laid out, they can go on and finish it; if not, it may be discontinued. The petition, though not asldng them to supervise and review the road, yet contains a request on a subject on which they had jurisdiction, and they ought to have taken cognizance of it. We shall therefore grant a mandamus, but not a peremptory one, and they can determine whether it is, or is not, expedient that the road should be completed, and make return of their doings on the mandamus, at the next term of this Court in the county of Hampden. 
      
       See Springfield v. County Comm. of Hampden, 10 Pick. 59; Danvers v. County Comm of Essex, 6 Pick. SO.
     