
    Commissioners of Wood County v. Samuel R. Junkins and wife.
    1. The code confers jurisdiction on the court of common pleas to review on error the final orders of hoards of county commissioners, in proceedings under the “act for opening and regulating roads and highways.”
    2. Where, in proceedings for a county road, there have been parties petitioning for a view and establishment of the road, and, after a report in favor thereof, there are other parties petitioning for a review against it; and where, after the final order of the commissioners, either party brings a petition in error to review their proceedings, the other party is a necessary party to the petition, and it is error to reverse the orders of the commissioners unless such other party is made defendant.
    Error to the court of common pleas of Wood county. Reserved in the district court.
    On the 5 th of June, 1867, a petition was presented to the board of commissioners of Wood county for the establishment of a county road. Two of the petitioners, Jesse and John Eaton, gave bond as required by the statute. Viewers were appointed, who made their report at the September session of the commissioners, in favor of the establishment of the road, with their estimate of the damages occasioned thereby. The amount assessed in favor of Mary E. Junkins, who duly preferred her claim for damages by reason of the contemplated road, was fifty-seven dollars. Being dissatisfied with the report of the viewers, Samuel R. Junkins, the husband of Mary E., filed with the commissioners a petition for review, and gave bond as required by the statute. Accordingly a committee of review was appointed, consisting of five members, three of whom made report, at the December session of the commissioners, against the establishment of the road. This report was set aside by the board, for the reason that it does not appear from the report that more than three of the reviewers appointed met and acted under- the order of review. But the board granted leave to file a new petition for a review at any time before the meeting of the board in March, 1858. At tbe meeting in March, 1858, no petition for review having been filed, and the damages assessed by the viewers having been paid by the petitioners for the road, the board made their final order establishing the road, and issued their order to the trustees of the proper township to open the road thirty feet wide for one half mile, and forty feet wide the remaining half mile of the distance.
    To reverse the order of the commissioners establishing the road, Mary E. .Junkins, with Samuel E. her ñusband, filed in the court of common pleas their petition in error, making “the board of commissioners of "Wood county, Ohio” defendant, and assigning for error that the commissioners erred in setting aside the report of the majority of the reviewers, and in establishing the road after that report. It is also alleged, as matter of fact, that the two reviewers who did not sign the report met and acted with those who signed and made the report.
    The commissioners demurred to this petition on two grounds: 1. Eor defect of parties, and that the commissioners cordd not be legally made parties defendant: 2. That the facts stated in the petition are insufficient to warrant the judgment prayed for in the petition.
    The court of common pleas overruled the demurrer and reversed the order of the commissioners establishing the road, and rendered judgment against the commissioners for costs. Thereupon the board of commissioners filed a petition in error in the district court to reverse the common pleas, and assigned for error, that the court of common pleas erred in overruling the demurrer to the petition, and in rendering judgment against the commissioners. Under this assignment of error it is claimed that the court of common pleas had no jurisdiction of the case.
    
      J. H. Reid for the commissioners:
    1. The commissioners were neither proper nor necessary parties to the petition in error. They neither had nor claimed any interest adverse to the plaintiff; and they were not necessary parties to the complete determination of the question involved. Code, sec. 35; Ferris v. Bramble, 5 Ohio St. 109; Lamb & McKee v. Lane, 4 Ohio St. 167; In the Matter of the Wells County Road, 7 Ohio St. 16; Shaver v. Starrett, 4 Ohio St. 495; Olin v. Hungerford, 10 Ohio, 272; Commissioners of Hamilton County v. Mighles, 7 Ohio St. 109; Hunter et al. v. Commissioners of Mercer County, 10 Ohio St. 520. It would seem that the petitioners for the road, who are principals in the bond, are the proper defendants ' to such a petition in error.
    2. There is no law by which the proceedings of county commissioners in establishing a road can be reviewed by the code-petition iii error. They do not exercise judicial functions within the meaning of sec. 511 of the code. They are not elected asjudges, and “it is not within the aompetency of the legislature to clothe with judicial power any officer or person not elected as a judge! Ex parte Logan Branch Bank, 1 Ohio St. 433.
    Manifestly, the commissioners are not elected as judicial officers, nor do they constitute judicial courts, in any sense. I am aware that the proceedings of county commissioners have been reviewed on error and certiorari; I have cited such cases above, but this question does not seem to have been made in any of them, and I am unable to see how such a practice could have obtained under the code. Under the old practice, which seems to have been a mixture of statute and common law, this may have been well enough. The law was different from our present code. See Swan’s Statutes (1841), 678, 679.
    It will not do to say that the commissioners are authorized to act quasi judicially. They either act judicially, or they do not. There can be no half-way house. Nor does it depend upon the fact as to whether they do acts judicial in their character, but whether they are by law clothed with power to act judicially.
    
    Their duties under certain statutes may be somewhat judicial in their character, but this of itself would not be a reason why their proceedings should be reviewable on error.
    
      
      Asher Cook for defendants in error:
    1. The commissioners were proper parties defendant in error, and enabled the court to completely and finally settle the controversy. Code, sec. 35. There is neither law nor reason for making the petitioners for a road parties defendant to review the action of the commissioners. A road is located and established not to subserve a private interest, but for the public welfare, and it is only because it is demanded by the public welfare, that the right of way can be obtained by condemnation. The public is, therefore, the proper defendant. The public spealns through the board of commissioners as its representative in establishing the road, and that board is the proper representative of the public in proceedings to review such action. The public can be made a party in no other way.
    Such proceedings, then, in the future, as in the past, must continue to be reviewed by making the board of commissioners parties defendant, or by proceedings ex parte. If expcurte, who shall be notified to defend ? If ex parte, what right have the plaintiffs in error to complain of the judgment of the court of common pleas ? If they are not the proper parties, it is because they have no interest themselves, and represent no one who has any interest in the controversy. If this be true, they have no right to complain of the judgment of the common pleas, unless there is something in it affecting their private interests. This is not claimed. The judgment for costs is against the public — the proper party — and not against the commissioners individually.
    2. The second proposition of the plaintiffs in error is answered by see. 511 of the code. That the board of county commissioners exercise judicial functions, is manifest by every decision made by them involving the exercise of their judgments: every petition asking for the location of a road invokes the judgment of the board of commissioners. It calls upon them to determine jiidicially whether the public welfare demands the road.
    The question is one of jurisdiction. Has the court of common pleas jurisdiction in this class of cases? This is answered in the affirmative by all the eases cited by the counsel of plaintiffs in error.
    
      F. <& D. K. Hollenback, also for defendants in error:
    1. The proceedings of the commissioners were reviewable on petition in error. Code, secs. 511, 530. Ewing v. Hollister, 7 Ohio, pt. 2, 138; Walpole v. Ink, 9 Ohio, 142; Baxter v. Columbia Tp., 16 Ohio, 56; Burrows v. Vandevier, 3 Ohio, 383; Hobbs v. Beckwith, 6 Ohio St. 252-3; Stemble v. Hewling & Hancock, 2 Ohio St. 228.
    If section 511 of the code is unconstitutional, because it provides for a review of the judicial proceedings of the commissioners, then surely is the road act unconstitutional which clothes them with judicial power, they not having been elected as judges. If, then, that act is invalid, the proceedings of the commissioners in establishing the road under and by virtue of its provisions are void.
    We should, however, have a judgment of reversal to remove the cloud from our title to the land covered by the proposed road.
    2. As to the proper j)arties defendant. The practice in cases of this character may not have been uniform, but has been such as will, we think, sustain the plaintiffs below in making the board of commissioners defendants. This practice is sustained by a consideration of the nature of the proceeding, to establish a public road. If errors or wrongs be committed by the commissioners, the real parties in interest are the party injured, upon the one side-, and the public upon the other. These, then, should be the parties to the action. The public can be reached and made, a party to the action only by bringing the commissioners — the representatives of the public — into court. This has been the practice. Burrows v. Vandevier, 3 Ohio, 383; Treadwell v. Com'rs of Hancock County, 11 Ohio St. 183; Ex parte Black, 1 Ohio St. 30; Shepard v. Com'rs of Darke County, 8 Ohio St. 354; Com'rs of Clermont County v. Robb & Ferguson, 5 Ohio, 491; Wells County Road Matter, 7 Ohio St. 16.
    The parties before the court are sufficient. Code, sec. 35.
   Day, J.

The first question we are called upon to consider is, whether the court of common pleas had jurisdiction to review on error the proceedings of the board of county commissioners establishing the road in question.

The constitution provides that the jurisdiction of the court of common pleas “ shall be fixed by law.” It is claimed that the 511th section of the code confers the jurisdiction. That section is as follows: “ A judgment rendered or final order made by a probate court, justice of the peace, or any other tribunal, board, or officer, exercising judicial functions, and inferior in jurisdiction to the court of common pleas, may be reversed, vacated, or modified by the court of common pleas.” The succeeding sections provide that this remedy may be obtained by “ petition in error.”

It is claimed, on the other hand, that the foregoing section confers jurisdiction to review the judgments and final orders of those officers only who are elected as judicial officers. This would be a restriction not warranted by the language of the section, for it expressly embraces, not only certain courts and judicial officers, but “any other tribunal, board, or officer, exercising judicial functions,” inferior in jurisdiction to the common pleas. This section is of a remedial character, and, as required by the second section of the code, must be “ liberally construed, with a view to promote its object.” When the code was adopted, proceedings according to the course of the common law were reviewable upon writs of error, and those of the character under consideration in this case on certiorari. These writs, to review judgments and final orders in civil cases, are abolished by the 530th section of the code; but the remedies obtained by means of these writs are preserved by the general provisions of the code for review by petition in error.

The proceedings of a board of county commissioners in establishing roads, were reviewable by writ of certiorari when the code was enacted. Erom the language used in the 511th section, it is manifest that the legislature did not intend to deny a like remedy as to orders of the same “ board ” in like cases, but intended rather that it should be embraced in the uniform mode provided for obtaining the same remedies by petition in error that were obtained through the abolished writs.

From numerous cases that have been before this court, both before and since the adoption of the code, it is evident that the special powers conferred by law'upon the board of commissioners, to determine questions that arise in proceedings for the establishment of' highways, are regarded so far judicial in their character, that the action of the board by virtue thereof may be reviewed on error. Nor do we see any good reason why this construction of the section in question, ever since its adoption, is not in accordance with its object and purpose.

It would seem, then, that the board of commissioners, in cases of this kind, may properly be regarded as a “ board ” exercising, within the meaning of the statute, “judicial functions,” and that, therefore, the court of common pleas had jurisdiction to review, on petition in error, the proceedings of the board of commissioners.

The next question presented is, whether proper parties defendant were made to the petition in error. It is claimed that the petitioners for the road, instead of the commissioners, should have been made defendants to the petition. ■ It is apparent from the record, that the question of defect of parties was made; but whether made or not, if the record' shows that the necessary parties were not before the court, it would be error to proceed and reverse the judgment or order sought to be reviewed.

The court held that the commissioners were the proper parties defendant to the petition in error. This, in a case ■like this, may be questionable; for the proceeding was of a character only to review the quasi judicial action of the ¡board of commissioners, and was npt strictly antagonistic to the interests represented by the commissioners. They were •not parties to the proceeding before them, but acted in a special judicial capacity between others who represented conflicting interests as parties before them; and to review sthe decisions and orders made, as between these parties, the petition in error was prosecuted. Now, whatever may be said about the propriety of making the commissioners defendants, by reason of some supposed interest of the county in the question, it is very clear that the parties to the controversy decided by the commissioners, and whose rights and interests were thereby affected, are necessary parties to the proceeding to review and modify, or vacate, the orders made in the case.

It appears from the record that there were opposing parties — one contending for the road, and the other against it. Two of the petitioners for the road gave bond to pay all costs of the proceeding if the road was not established, and the petitioner for the review gave bond to pay the costs of review if the road was established.

A proceeding to reverse the order establishing the road was a direct attack upon the pecuniary rights of the petitioners for the road who had given such bond, as well as the interest they had in establishing the road. The statute requires the petitioner for the review to give six days’ notice, to the principal petitioner for the road,” of the time and place of the meeting of the reviewers ; thus recognizing the adverse rights of the petitioner who takes the responsibility of the proceeding to establish the road. There is surely an equal reason for making him a party to a proceeding intended in another form to defeat the establishment of the road.

We think that the petitioners who gave bond as required by law were necessary parties to the petition in error, and that, not having been made such, the court erred in reversing the orders of the board of commissioners.

As to the other questions made in the ease directly affecting the parties not before us, we do not deem it necessary, or indeed proper*, -to*express an opinion upon them at this time.

For the reason above stated, the judgment of' the common pleas must be reversed.

Bbinkerhoff, C.J., an<I Scott, Welch, and White, JJ., concurred.  