
    The State vs. Israel Scott.
    1. If it appear by the return of the surveyors appointed to lay out a roady_ that they met at a place different from that designated by the order of the court, their proceedings will be set aside.
    • 2. The return of the surveyors should shew that they received proof that publication had been made of their meeting, and that they decided upon it. ■ 3. An affidavit of a person (not one of the surveyors) will not be sufficient evidence to contradict their return.
    This was a certiorari to the common pleas of Burlington: to remove the proceedings in a matter of road. The order of the Court of Common Pleas, appointing the surveyors to-lay out the road, directed them to meet at the house of-James U. Coleman in Nottingham. The return of the surveyors was as follows: "We the subscribers, six of the surveyors of the highways of the county of Burlington,. appointed on the application of Elias Bowne and others, above ten of the freeholders and residents of the said county, by the inferior Court of Common Pleas of the said county, in the term of November instant, to lay out a public road of thirty-five feet wide in the township of Nottingham in the said county, as by the order and appointment of the said court, a certified copy whereof is hereunto annexed, more fully appears, do hereby certify and return, that having mot agreeably to the order of *the said court on [*18 this twenty-second day of November, eighteen hundred and twenty-four, at the house of Daniel Ivins, innkeeper in Nottingham township in said county, and having viewed the premises and heard what could be said for and against the road, do think and adjudge the said road as applied for and mentioned in the annexed copy of the said order of the said court, to be necessary, and have laid out and do accordingly lay out the same as follows,” (setting out a description of the road.)
    
      Hamilton
    
    moved to set aside the return of this road and the proceedings thereon for the following (among other) reasons.
    1. Because the surveyors did not meet at the place appointed by the order of the Court of Common Pleas, but at a different place.
    2. Because the surveyors proceeded to lay out said road without any proof of their meeting having been advertised according to law.
    
      Wall
    
    opposed the application, and in answer to the first objection read an affidavit (duly taken) stating “ that the surveyors met to lay out the road in question on the 22d of November, 1824, at the house of James G. Coleman, and from thence went on the ground of the road, that they dined at Mr. Coleman’s after they had gone over the ground; they then agreed to go to Daniel Ivins’ in order to hear the allegations, on account of having there more room, than they had at Mr. Coleman’s; there they heard the parties and signed their return.”
   The Chief Justice delivered the opinion of the court as follows:

The jurisdiction of this court to enquire into the manner in which the inferior tribunals have exercised the powers given to them by our statute relative to the laying out of roads, and the extent of that jurisdiction, have undergone such repeated examinations, and have been so frequently recognized and so firmly established as to render further or renewed investigation at this time unnecessary. It may suffice to refer to the cases of The Middlesex and Monmouth Road, 1 South. 290, The State v. Shreve, ibid. 297, and The State v. Conover, 2 Halst. 203. By the writ of certiorari are brought here the order of the court for recording the return of a road and all the previous proceedings on which it is founded; and if in the orders of the Court of Common Pleas, or in the proceedings of the applicants or the surveyors, or other than those on which the decision, of the court or the surveyors is declared by tl9] *the statute to be final and conclusive, substantial defects are found, the return of the road and the recording of it will be vacated and set aside. ■

Having premised these remarks by -way of shewing our power to enquire into the exceptions taken to the proceedings in question and in answer to the objection raised in this respect by the counsel for the road, we proceed to examine them.

We think it, however, necessary to notice two only, as without expressing any opinion on the others we hold them to be fatal.

1. The statute directs the court to fix the time and place of the meeting of the surveyors, requires that all persons concerned have opportunity to become informed thereof by public advertisements, and at such time and place the surveyors are bound to meet. The reasons and importance of a strict compliance are manifest. The rights of persons interested may be essentially abridged if not entirely defeated, if while they are patiently waiting at the place to which they have been called under the sanction of the court, the surveyors may meet at another, and there .lawfully perform their duties. In the present case the surveyors did not, as appears from their own certificate and return, comply with the order of the court. They were directed to meet at the house of James G. Coleman, and they did meet, as they say,, at another place, the house of 'Daniel Ivins. An attempt was made to curodhis defect by the affidavit of a person who deposes that they met at the house of Coleman and from thence went to the house of Ivins for the convenience of more room. .But this mode of amending the return of the surveyors is entirely inadmissible. They certify they met at the house of Ivins; and to this hour not one of them has so far as we know contradicted it; but some person is produced to say they met at Coleman’s ; who is to be believed ? It was asserted that this affidavit does not contradict the return, because in the return the surveyors say they mot “ according to the order of the court,” but they add, “ at the house of Daniel Ivins,” thereby shewing where they met and that they did not meet according to the order of the court. If indeed the words suggested by the counsel in support of the road were inserted “at the house of James G. Coleman and adjourned to the house of Daniel Ivins,” there would be no incongruity; but they are not there; and we think they cannot be supposed there because of an affidavit which directly contradicts what the surveyors have certified.

*2d. The return does not shew that the surveyors [*20 required and received proof that public notice had been given of their meeting or that they decided upon it. The .statute declares that on due proof being made to the surveyors when met, that the advertisements of their meeting have-' been set up according to law, on which they shall decide and their decision be final and conclusive, they shall view the premises and may if they think it necessary lay out the road. Without such proof they may not proceed. Their authority and jurisdiction to view and lay out the road depends on such proof. That due proof in their opinion was made ought then to appear on the face of their proceedings. For it is a clear and certain rule with respect to-persons exercising special or statute authority, that all substantial matters requisite to give them jurisdiction to-exercise such power, must not only have been performed but must appear to have been performed. The presumption in favor of jurisdiction referred to by the counsel for the road,'extends only to courts, tribunals or officers of general or common law jurisdiction, but tribunals or officers or persons executing special or statutory authority or of limited jurisdiction must shew their jurisdiction. In Rex v. Liverpool, 4 Burr. 2244, the Court of King’s Bench on certiorari quashed an inquisition and verdict of a jury taken before a sheriff under an act of parliament for bringing water into Liverpool, for the want of an averment in the inquisition that notice had been given to the parties interested, because it ought to have appeared on the inquisition and also to shew the jurisdiction, although it was contended that the party was to give the notice, the sheriff had nothing to do-with it, and that it was an anterior act to be done twenty days before the inquisition. The cáse of Rex v. Croke, Cowp. 26, is strongly to the same point. In Turner v. The Bank of North America, 4 Dallas 8, Chief Justice Ells-worth, delivering the opinion of the Supreme Court of the-United States, said, “A circuit court is of limited jurisdiction ” — “ and the fair presumption is (not as with regard to-a court of general jurisdiction, that a cause is within its-jurisdiction until the contrary appears, but rather) that a. cause is without its jurisdiction until the contrary appears-This renders it necessary, inasmuch as the proceedings of no court can be deemed valid further than its jurisdiction appears or can he presumed, to set forth upon the record of a circuit court the facts or circumstances which *give [*2i jurisdiction either expressly or in such manner as to render them certain by legal intendment.”

The doctrine on which this exception to the road is founded was fully recognized in the case of the Middlesex and Monmouth road, 1 South. 290. The court say, “ The surveyors must adjourn and meet in the mode there [in the statute] prescribed, and did it appear that there had been an adjournment it- ought also to appear that that adjournment was in all respects legal and proper; but in this instance it does not certainly appear that any took place. Where none did take place nothing need be said on the subject.”

On these exceptions, we think the return and the record thereof should be vacated and set aside.  