
    City of Belfast vs. County Commissioners of Waldo County.
    Waldo.
    Decided February 6, 1878.
    
      Appeal.
    
    When, in case of an appeal from, the decision of county commissioners, a committee has been appointed, one of whom has resigned, diligence is required in applying to the court to fill the vacancy. It should be filled at the term when it occurs.
    On exceptions.
    Appeal from the decision of the county commissioners, locating a highway in Belfast, on petition of F. W. Banan and others. The appeal was entered at the April term, 1875. A committee was then appointed and afterwards gave notice of time and place of hearing and view; but on account of the unavoidable absence of Asa Thurlough, one of the committee, no hearing or view was held; an adjournment for which was had to October 13, 1875. October 12, 1875, Thurlough placed his resignation in the hands of the clerk of the court, in consequence of which no hearing was then had. The October term, 1875, was held by a justice not an inhabitant or tax payer of Belfast; but not so, the January and April terms, 1876. At the October term, 1875, an attempt was made by the appellants and petitioners to agree upon a person to be appointed to fill the vacancy; but no agreement was made and none appointed. At the October term, 1876, the petitioners moved to dismiss the appeal, because the appellants had not exercised due diligence in its prosecution. Afterwards, at the same term, the appellants moved the court to appoint a suitable person to fill the vacancy caused by the resignation of Thurlough.
    The presiding justice ruled that the appellants had not used due diligence in prosecuting their appeal, refused to appoint a suitable person to fill the vacancy on the committee, and ordered the appeal dismissed with costs, and the proceedings of the county commissioners appealed from, affirmed; and W. H. Fogler, for the city alleged exceptions.
    
      A. G. Jewett, city solicitor, for the appellants.
    
      J. E. Johnson, for the petitioners.
   Appleton, C. J.

This is an appeal from the decision of the county commissioners of Waldo county locating a highway in the city of Belfast. The appeal was seasonably taken and entered at the April term, 1875, of this court when a competent committee was appointed and a warrant duly issued. On October 12, 1875, Asa Thurlough, one of the committee, resigned and placed his resignation in hands of the clerk of this court, who, at the October term, 1875, entered upon the docket the fact of his resignation without the date of the day of the term when the entry was made. It is, however, apparent that the petitioners had knowledge of such resignation, for they attempted to agree with the counsel of the petitioners for the road in question upon a successor to Mr. Thurlough and failed. It was then their duty to have applied to the court to appoint some suitable person in his place. B. S., c. 18 § 39. This they neglected to do. The same degree of diligence is required in filling vacancies as in the original appointment of the committee. The vacancy should have been filled at the term when it occurred. The committee must be appointed at the term when the appeal is entered. French v. County Commissioners, 64 Maine, 583.

Exceptions overruled.

Danforth, Yirgin, Peters and Libbey, JJ., concurred.  