
    The People ex rel. Ira P. Bingham vs. Trustees of the Village of Brighton.
    Village authorities instituted proceedings to open a street through lands ofB., who resisted the proceedings. Held, certiorari his proper remedy.
    The Village Clerk was abo a Justice of the Peace, and issued a venire returnable before himself as Justice. Held, the issuingof the venire by the Village Clerk being a ministerial act, he is not disqualified from having it made returnable before himself as a Justice of the Peace. To give jurisdiction in such proceeding, it must appear from tho return of the officer who summons the jury that they are such persons as the statute allows to act in the case.
    In special proceedings the jurisdiction and regularity of the steps taken must appear affirmatively by the record."
    
      Certiorari to a Justice of the Peace on proceedings to open street.
    The village authorities of Brighton took proceedings to open Hamburg street through the lands of Dr. Bingham. Bingham resisted the proceedings. The Village Clerk, who was also a Justice of the Peace, issued a venire for the summoning of a jury returnable before himself as Justice. The constable summoned a jury, but did not state that the jurors were freeholders residing out of the village, as the statute requires. The jury gave a verdict that the improvement was necessary, and assessed Bingham’s damages. Bingham then sued out a certiorari
    
   Opinion by

Campbell, C. J.

Property cannot be taken in an incorporated village for public use without the consent of the owner unless upon the verdict of a jury of freeholders not residing in the village. Under the statute, (C. L., §2124,) the appeal provided for from the verdict oí1 such a jury relates only to the amount of damages, and a certiorari lies in favor of a party who objects to having his lands taken at all.

The proceedings under the law are not under the control of the village authorities, but when they have determined to commenee them the venire is made returnable before a Justice, and thenceforth the village becomes a moving party, and the jury the tribunal. The legal proceedings begin with the venire and end with the Justice’s judgment upon it, and the certiorari, therefore, issues to the Justice, in whose custody all these papers are placed by the law. But on certiorari to him there can be nothing examined behind the venire.

The issuing of the venire by the Village Clerk being a ministerial act, he is not disqualified from having it made returnable before himself as a Justice of the Peace.

The necessity for the improvement, as well as the value of the land taken, must be determined by the jury, and parties have a right to give testimony upon the one question as well as upon the other.

In special proceedings the jurisdiction and the regularity of the steps taken must appear affirmatively on the face of the record, and no substantial omission.pan be supplied by extrinsic evidence; and where the return of the officer summoning the jury does not show them to be such persons as would be qualified to act, the proceedings are void.  