Lawton and others against The Commissioners of Highways for the Town of Cambridge, in Washington County

Lawton and others against The Commissioners of Highways for the Town of Cambridge, in Washington County. A certiorari lies to the judges of the common pleas, on an appeal to them, from the commissioners of highways. On a return by the judges to such a certiorari, not stating what nroceedings were had before the commissioners, the intendment of law ii, that they were regular. What is returned without being required and no* asserted as a fact, but merely as matter of belief and information, is irrelevant, ard not to be regarded If the return state a road to have been laid out, U will he presumed it was -of the proper width, unless the contrary nppect. On certiorari to three of tbe judges of the common pleas of Washington, to return an appeal to them from tbe determination of the commissioners of highways, for the town of Cambridge, “ and also the decision, judgment, process, and proceedings of tbe same, with all things touching the same,” the return stated tbe appeal to have been on tbe laying out-a public road or highway through part of tb * town of Cambridge; it then set forth the minutes, or memorandum, as it was termed, of the laying out, by precise courses and distances ; but the width of the road was not given, nor was it specified whether it ran through-improved or unimproved land; -neither did it mention that it was laid out on the request of twelve freeholders under oath. This memorandum was signed by the commissioners, and directed to the town clerk, requesting him to record the same as a public road, and to it another memorandum subscribed by the same commissioners was subjoined, in the following words: “ Likewise a piece of road south of Mr. William Hill’s dwelling-house,” &c. describing the courses and distances, but ^without specifying any request to record it, either as a public or private road. The return farther stated that the judges, according to the act of the 8th of April, 1801, (1 Rev. Laws, 588,) met on this appeal, and after hearing reasons for and against the road, affirmed the determination of the commissioners ; adding, however, that when this was done, they were n )t informed or advised that the highway was laid out though a garden, which had been cultivated as such for at least four years, without the consent of the owner (sec. 15,) thereof, which had been since communicated to them, and which they believed to be true. To this return the plaintiff assigned the following errors: 1. That it did not appear that twelve freeholders had certified, under oath, that the road was necessary; 2. That the commissioners had not caused the laying out to be recorded; 3. That it did not appear whether the road was laid out as a public or private road; 4. That from the return of the judges, it appeared that the road was run through a garden, improved as such more than four years; 5. That the width of the road was not stated, which ought to be done with definite boundaries. Foot, for the defendants. Before entering into the discussion of the errors assigned, it may be well to observe, tbat by the 2d section of tbe act, under which the proceedings complained of have taken place, the decision of the, judges of the common pleas is made conclusive. It may be questioned, therefore, whether this court, in the present instance, has j urisdietion. Kent, Ch. J. We will think of that matter; in the mean time let the argument proceed. Van Vechten, for the plaintiffs.' By the last proviso of the 15th section of the act to regulate highways, it is ordained, “ that no road shall be laid out through any improved land,-without the consent of the occupant, unless upon the application of twelve respectable freeholders of the town, certifying on oath that such road is necessary and proper.” This regulation, it appears from the return, has not been complied with. As the power by which it was to be carried into effect is a special delegated power, it must be strictly pursued, and so shown to the court.' The same observation applies to the 2d and 3d exceptions. The direction to record is confined to the first road, and cannot extend to the second; for as the whole proceeding is *in deregation of the rights of individuals, nothing can be taken by way of intendment. The importance of stating the nature of the road, whether private or public, is manifest from the 17th section of the act; the first are to be not more than three, the latter not less than five, rods wide. On the face of the return it appears that the road was laid out contrary to law. It is expressly stated that the judges knew not, till after confirmation of the acts appealed from, that the road went through a garden improved for more than four years. Had the requisites of the act been complied with, this must have appeared. It is plain, then, that without adhering to the' directions of the statute the commissioners have laid out a road, infringing on private rights, and contrary to the act For these reasons we contend tbe judgment must be reversed; besides, tbe commissioners’ proceedings are not returned. Foot, contra. Tbe return made by tbe judges oarriea a spirit of partiality. KENT, Cb. J. No imputation can be received against inferior magistrates, unless they stand charged with improper conduct. They are not bere to answer for themselves. Tbe only question is, are tbe proceedings regular or not ? Foot. Tbe judges are not bound to return any thing which was not before them ; therefore tbe -application of twelve freeholders, &c. and all that constituted grounds for the commissioners to proceed, need not appear. From tbe face of the return it is evident the road laid out is ordered to be recorded as a public road. Tbe direction for the latter is, that it shall be “ likewise,” which is as much as to say, in the same manner as the former. It cannot be intended from the record, that the road went through a garden. If the proceedings do not show intrinsic error, it will be presumed they are correct. The law prescribes the width of the road, and till the contrary appear, the infe-renceunust be, that the directions of the statute have been complied with. Van Vechlen, in reply. The reasoning of the opposite side is in effect this, that the court must decide on what is, from what does not appear; therefore a compliance with the act must be presumed, because it is not shown. This is contrary to every principle relating to inferior jurisdiction. [MAJORITY — SpeNCEr, J.] SpeNCEr, J. delivered the opinion of the court. It is made a question, whether a certiorari is grartable to remove into this court these proceedings, the statute baying declared the decision of the ^'judges of the common pleas, on an appeal made to them, to be conclusive. It is a position beyond contradiction, that the king’s bench, in England, (and this court is clothed with the same common law authority,) has jurisdiction, and may award a certiorari, not only to inferior courts, but to persons invested by the legislature with power to decide on the property or rights of the citizen, even in cases where they are authorized by statute finally to hear and determine. 4 Hawk. 144. A certiorari has been held to lie to commissioners of sewers. In the case of Cardiffe Bridge, 1 Salk. 146, and 1 Ld. Raym. 580, a certiorari was granted to remove certain orders of justices of the peace, made pursuant to a private act of the parliament, for repairing the bridge; and it was there decided, that wherever new jurisdictions are. erected, be it by private or public act, they are subject to the inspection of the king’s bench by writ of error, certiora/ñ and mandamus. The authorities to this point are so numerous and uniform, that it cannot be necessary to enlarge. The necessity of a superintending power to restrain and correct partialities and irregularities which may be com-, mitted by inferior officers, is so obvious and indispensable, that the court ought by no means to deny themselves a jurisdiction of such salutary influence. Though the general power of the court is indisputable, there are cases where they will not interfere. In the case of a poor rate, they will refuse the writ; as also in the assessment of the land tax, from a regard to the public inconvenience. The King v. King and others, 2 D. & E. 235. In cases, too, depending wholly on the discretion of persons authorized to do an act, this court hath refused to interfere; I allude to an application made for a mandamus to the commissioners of highways of Rhynebeclc. There the court perceived that its interference would be nugatory, because the commissioners had a discretion to lay out, or refuse to lay out, tbe road applied for. The present is a different case; the regularity of the proceedings is questioned, and most certainly the court cannot want jurisdiction to inquire into it, when a freeholder shall apply to them not to be disturbed in his freehold, but by proceedings conformable to law. The answer to the first exception is, that the certiorari having been directed to the judges of the common pleas, the court cannot require or expect from them a return of any proceedings not before them. The application may have been made by *the twelve freeholders, and still the judges have no knowledge of the fact: in our opinion, their authority to hear the appeal was confined- to the merits alone — the fitness or unfitness of laying out the road. Hence, on this return, to intend that the proceedings before the commissioners were irregular, merely because the judges have not returned them, would be unreasonable and unwarrantable. The return answers both the 2d and 3d objections; the road was directed to be recorded, and was laid out as a public road. As to the 4th objection, the return made by the judges, relative to the garden, is not to be regarded, for two reasons : 1. It is not asserted as a fact that the road ran through a garden improved four years: 2. It is inserted, without warrant, not being ordered to be returned, and is not to be regarded. 2 Salk. 492. As to the 5th objection, the 18th section of tne act requires that all public roads, to be laid out, shall not be less than four rods. Where the commissioners are silent with respect to the width, in our opinion the court ought to intend that the road is of that width. We think, therefore, the proceedings ought to be affirmed. Judgment o” affirmance. See the ease of People ex rel. Woodward v. Covert, 1 Hill, 614; Allyn v. Commissioners of Highways in Schodack, 19 Wend. 342; see (sess. 36, c. 33, N. R. L. 232,) Commissioners, &c. v. Claw, 15 J. R. 537.