
    People ex rel. Dexter v. Hosier et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    February 4, 1890.)
    1. Highways—Establishment—Constitutional Law.
    Laws N. Y. 1880, c. 114, provides for laying out highways in towns in which the real estate is assessed at an average price of less than five dollars an acre, and authorizes the commissioner of highways, on the petition of six freeholders, to lay out a road, and adjust the damages to the owners of the property taken, and declares that, on making out and filing an order containing a correct survey of the road, and a statement of the amount of damages allowed for the same, the road shall become a public highway. Held, that the act is unconstitutional-, since it makes no provision for giving notice to the owner before taking his property,
    2. Certiorari—Acts under Void Law.
    The action of the commissioner of highways in laying out a road under such act, which action is claimed to be illegal on the ground that the act is unconstitutional, can be reviewed by certiorari.
    
    
      Certiorari to review the proceedings of the commissioner of highways of the town of Waverly, in laying out a public highway in said town across the lands of relator.
    Argued before Learned, P. J., and Landon and Fish, JJ.
    
      John P. Badger, for relator. J. W. Webb, for respondents.
   Learned, P. J.

The statutes which have to be considered in this case are a flagrant specimen of careless and ignorant legislation. A highway system was established by the Revised Statutes. Chapter 431, Laws 1875, amended section 60, art. 4, tit. 1, c. 16,1 Rev. St., and began by calling it “section 75.” Chapter 114, Laws 1880, exempted from the provisions of the aforesaid amendatory act all towns whose real estate is assessed, as shown by their last assessment rolls, at an average price of less than five dollars per acre; and it provided a very summary mode of laying out highways in such towns. The assessment roll referred to might mean the last before the passage of the act, or the last before the opening the highway. Then chapter 696, Laws 1881, amended section 75, art. 4, tit. 1, c. 16,1 Rev. St. Finally chapter 267, Laws 1885, was passed to amend certain errors in the Laws of 1880 and 1881; and one of the dozen amendments was, in the last-named act, to make “section 75” read “section 60.” Now, whether the amendment of 1881 was to do away with the exemption of 1880, or whether that exemption was to remain, probably no legislator knew or cared; and all were probably equally careless whether the exemption of 1880 from the-provisions of 1875 was also an exemption from the provisions of the Revised Statutes. The commissioner of highways in this case assumes that chapter 114, Laws 1880, is in force, and that it applies to bis town of Waverly, because the assessment roll of 1888 showed an average of less than five dollars per acre; and in pursuance of that act he has laid out a road. That act provides for no appeal; therefore this certiorari lies. ¡Section 2 of the act authorizes the commissioner of highways, on the petition of six freeholders, to lay out a road and to adjust the damages; and, on making out and filing an order containing a correct survey of the road, and a statement of the amount of damages allowed for the same, the road shall become a public highway. No provision is made for giving any notice to any owner of property either of the taking of his property or of the ascertaining of his damages. It has so often been held that “due process of law” must include notice to the party whose property is to be taken that we need only state the principle. Whether section 3 of the act might not, in a very imperfect way, supply the lack of notice of the assessment of damages we need not say. It is enough that the statute has no provision by which the owner, whose land is to be taken, has an opportunity to be heard on the question of taking his land for a highway.

The defendants say that if their act is illegal it cannot be reviewed by certiorari; that the only remedy is trespass. The case cited, Peoples. Nearing, 27 N. Y. 306, does not sustain that doctrine.- The doctrine is to be found only in the head-note of the reporter, which in some volumes of those reports is not good authority. Whether any trespass was committed we do not know. The certiorari is not to remedy a trespass, but to correct a wrong judicial or quasi judicial action; and the action is just as wrong when it is contrary to the constitution as wlien it is contrary to statute law. The proceedings must be reversed, with $50 costs, and disbursements to the relator.  