
    IN THE MATTER OF THE OPENING OF A ROAD “FROM THE NORTHEASTERLY TERMINATION OF JEFFERSON AVENUE IN THE CITY OF DETROIT”
    April 1826 (?)
   [JUDGE’S NOTES]

By the ordinance of 1787, the Govr and Judges, have authority to adopt Laws from the states, that may be necessary to the Government of the district— page 4. Terry Laws— This provided that the Laws adopted or made, shall have force in all parts of the District, (meaning the Terry) pa 5.—

It is denied that the 7 Section of the act, regulating highways has any validity, as it is in its nature Local— and 2d that it is not adopted from the states, as it purports to have been, therefore void— Laws of Terry 105. 7 Section—

This section, establishes the road, the Length and Breadth are defined— and authority given to the County Commissioners to open it, when ever they may consider it for the Public interest that it should be opened, after an appraisal of the damages and pay1 &c

Had the Gov” & Judges, authority to Legislate thus specially and thereby establish a Territorial road?—

If the act should be declared inconsistent with the powers Conferred by Congress, and the Commissioners by acting under it Commit an error— In what manner is that error to be enquired into, and by whom rectified?

I do not discover any mode pointed out by the Laws of the Territory, to review the doing of the County Commissioners— The law makes them an absolute & final tribunal— No appeal or other mode of review of their acts is found in the Laws—

I can hardly believe that it was intended by our Law makers that the Commissioners should be wholly exempted from the supervising powers of the Courts of the Terry—

If not, how are their proceedings to be reached? Can their decisions be removed into the S. C. by a certiorari?

If so it must be done on principles of the Com. Law—

A Judge of the S. C, has authority, upon good cause shewn, by affidavit, in vacation, to grant a Certiorari— Upon the application now made, no cause is shewn by affidavit— Therefore the application is overruled—

[OPINION]

The act entitled “an act to regulate Highways”, adopted the 30 of Decbr 1819. by the Govr and Judges, confers upon the County Commissioners, the authority of Laying out and making of Highways and roads— In executing this authority, the Commissioners are strictly police officers, of the County— I cannot find any Statute authority that contemplates a review of their acts under the law— They appear to possess a final Jurisdiction from which no appeal is given to another Tribunal— Their duties are pointed out and defined by the Law and are of the class called ministerial, and like the proceedings of all other executive or ministerial offices, can be tested by action— If on investigation it shall be proved that they have kept within the provisions of the act, under which they deduce their authority, it will stand and the Commissioners will be protected— If on the Contrary, it shall be proved that they have departed from the law which confers the authority their proceedings will not protect them or those who shall act under their directions—

The 17 Section requires the supervisors to act upon and carry into effect, the orders of the Commissioners, if made pursuant to Law— So far the supervisor would be protected, but no further—■ If the Commissioners were a Court or their acts Judicial, the supervisor would be protected under their warrant, even if regular altho the proceedings of the commissioners were erroneous on which statute warrant issued—

A certiorari, altho declared a writ of right, cannot be granted unless a proper case is made out A writ of error is a writ of right, yet it cannot be used unless a Judg* exists, on which it is to operate— A writ of Habeas Corpus is also declared a writ of right, yet it cannot issue unless upon allegation of illegal restraint or imprisonment— Every writ has its defined province of operation, in which it may be used effectively and wherein it is a writ of right— But further it is not to be issued and it ceases to be a writ of right— The present application, does not disclose a proper case for a certiorari— It would bring nothing before the Court on which it could act— The commissioners are not Judicial officers— they Cannot hold a Court or assess a fine— The Law makes them police or ministerial officers, and clothes them with certain defined powers, under which they must justify if arraigned—

If I was of a different opinion in the present instance I would not issue a writ certiorari, as no facts are verified by oath, and without oath a Judge in vacation cannot issue a certiorari—  