
    The Commissioners of Highways of Warwick vs. The Judges of Orange County.
    NEW YORK
    May, 1835.
    On" an appeal from the decision of commissioners of highways in refusing to lay out a road, the judges have no authority to entertain an objection tó the regularity of the proceedings anterior to the decision of the commissioners ; their decision can only be on the merits, as to the necessity and propriety of laying out the road. -
    If any irregula'rity has'intervened previous to the decision of the commissioners, it can be corrected only by certiorari, directed to the commissioners.
    Three of the judges of the county of Orange laid out a road in the town of Warwick, on an appeal from a decision of the commissioners of highways of that town, refusing to lay out a road according to a petition presented to them. The commissioners obtained a certiorari, requiring the judges to make return to this court of their proceedings. The judges returned that an appeal in due form was presented to them; that they appointed a day and place for the hearing thereof, and caused due notice of such appointment to be given to the commissioners. That they, the judges, attended at the day and place appointed, and proceeded to view the route of the contemplated road. That counsel, in attendance to oppose the laying out of the road, offered to prove that all the persons who acted as a jury in certifying in favor of the laying out of the road, and whose certificate was presented to the commissioners, were not freeholders of the town of Warwick; that the oath prescribed by law was not administered to the jury before they proceeded to view the premises, and hear the proofs and allegations of those concerned; that thirteen persons were sworn and admitted to act as jurors; that after they were sworn and entered upon their duties, they were taken by one of the applicants for the road to his house, and there treated with spiritous liquors, and otherwise entertained, and that the jurors did not view the whole of the road applied for; all which evidence the judges refused to receive; and after examining the route of the proposed road, and taking the testimony of several witnesses produced by both the parties, the judges reversed the determination of the commissioners, and ad~ judged that the road applied for ought to be laid out, and accordingly proceeded to survey andlay out such road, and caused a record thereof to be made in the town clerk’s office. From the certificate of the jurors accompanying the return, it appeared that the jurors were sworn before ajustice of thepeace.
    
    
      M. T. Reynolds, for the commissioners.
    
      S. Stevens, for the judges.
   By the court,

Nelson, J.

The former and present statutes, as to laying out roads by commissioners of highways, and the appeal to three judges of the county, are substantially alike. 2 R. L. 275, § 16. id. 282, § 36. 1 R. S. 514, § 57,61. id. 518, § 84, 89. In the case of Lawton et al. v. The Com’rs of Highways of Cambridge, 2 Caines, 179, the opinion was expressedby Mr. Justice Spencer, and, as I understand it, it was the opini on of the court, that the authority of the judges to hear the appeal was confined to the merits alone—the fitness or unfitness of laying out the road. No different opinion has been expressed in any subsequent case that has come under my notice. The proceeding by appeal was not intended to be a review of legal questions, or of irregularities that might exist in the preliminary steps, as on a writ of certiorari; but to bean examination of the nececssity or propriety of the road.as-sum*no a^ the previous steps to have been regularly taken. A certiorari directly to the commissioners is the appropriate remedy for the correction of errors committed by them. The decision of the judges, or any two of them, is conclusive upon the parties in the premises. 1 R. S. 519, § 89. It is chTj0US) jf tpey hacl jurisdiction to confirm or reverse the decision of the commissioners for mere error of law, their judgment would be final, which could not have been intended by the legislature; nor has such been the exposition of their powers by this court, and had it been, it would be the only answer necessary to be given, to the numerous points of law raised in this case. The judges can only entertain, examine and determine the appeal on its merits, and then their decision is final and conclusive, so far as the merits are involved. This brings us to the consideration of the regularity of the proceedings ofthejudgesuponthe merits, laying out of viewquestions of law brought before them upon preliminary steps had before the commissioners, with which we have nothing to do on this writ, as it brings up only questions that were legitimately before the judges. It is true, that in the cases of The commissioners of Highways of Carmel v. The Judges, 7 Wendell, 264, and The commissioners of Bushwick v. Messerole, 10 id. 122, questions were examined, on the return of the certiorari to the judges, respecting the regularity of the proceedings before the commissioners ; but no objection to the consideration of such questions was made, and the point did not come under the observation of the court. I do not see how it is possible for the plaintiffs to escape the dilemma presented upon the language of the statute. The judges are directed to hear the proofs and allegations of the parties —to compel the attendance of witnesses—and “ their decision, or that of any two of them, shall be conclusive in the premisesit shall be signed by them, and become a record in the town clerk’s office. Now, if the judges may entertain a question as to the regularity of the proceedings before the commissioners, and affirm or reverse for that cause,.their decision upon it would be just as conclusive as if made on the merits, and therefore it is not to be reviewed here. If the appeal is confined to the merits, then the previous proceedings are not before the judges, and of course cannot be reviewed on a certiorari to them. Then the decision upon the merits is final; and if, in considering them, they violate any rule of law, the error will be corrected by virtue of the superintending power of this court over the proceedings of subordinate tribunals. The language of the act is thus satisfied. They must conduct their proceedings according to the statute and the rules of law; and if they do so, although they may err in their decision upon the merits of the question before them, we cannot interfere.

When an application is made to commissioners, they may refuse to act, and should so refuse, unless, in their opinion, the certificate of the 12 freeholders presented to them is regular. If they err in the refusal to act, the remedy by mandamus is at hand. If they act and lay out the road under an irregular certificate, or commit any error in law themselves, a certiorari directly to them will afford redress. If they act under the certificate, and refuse to lay out the road, it is absurd and trifling to permit them to turn round and say that the certificate was defective, and for that reason, on an examination of the route proposed, they rejected the application. On an appeal to the judges, in case of refusal, they are the only parties notified to appeal and sustain their decision, 1 R. S. 548, § 87, and of course the only parties in contemplation of the statute before the judges resisting the appeal, and who can raise the legal questions that may be relied on. It seems to me to be equally absurd, and repugnant to principle, to permit them to set up their own errors by way of defence on the hearing before the judges, which must inevitably follow if questions of law are to be thus reviewed by the judges.

It may be said, that if the commissioners should act under a defective certificate, and refuse to lay out the road, and on an appeal their determination should be reversed, a road may be laid out on a defective certificate of the freeholders. All this may be true. But we have no right to assume that these officers will put their refusal to lay out the road upon the merits, when they might have refused to act at all, and then before the judges on the appeal justify themselves, on the ground that they need not have acted ; because, they must be guilty of this inconsistency, in order to avail themselves of the error, supposingthe judges have power to review the whole of the preliminary steps. Some confi¿¡ence must pe reposed in these officers, in either aspect of the question. They might omit to take the legal objections on jjie appeaj; conceding their right to raise them to the regularity of the preliminary steps—and they are the only persons that can—and then the result apprehended would follow.

Upon the whole, therefore, I perceive no solid reasons against the position laid down in the case of Lawton et al. v. Commissioners of Highways of Cambridge ¡that the authority of the judges to hear the appeal is confined to the merits alone; on the contrary, much inconsistency and violation of sound principles is avoided, and the spirit of the statute faithfully executed; by confining them to that question. The power of this court can be legitmately exerted to keep both the commissioners and the judges within their proper bounds in conducting their proceedings, and then the determination, first by the one and then by the other on appeal, will be conclusive in the premises, according to the letter of the statute. Upon any other view, a road might be laid out, upon a reversal of the determination of the commissioners, on mere legal questions, without involving their opinion upon the merits. The act contemplates such an opinion before the judges can act.

Proceedings of judges affirmed.  