
    CALEB MILLER ET AL. v. THE TOWNSHIP COMMITTEE OF BRIDGEWATER.
    The township committee are authorized, by the act of March 1, 1850, concerning roads, to cause the damages assessed for lands taken for roads to be assessed and raised without any vote of town meeting; and if they refuse or neglect to raise and pay such damages, a mandamus will issue to compel them.
    Mr. Ransom, on behalf of Miller and others, applicants for a road recently laid out in the township of Bridgewater, in the county of Somerset, moved for a mandamus, to be directed to the township committee of that township, directing them to cause the amount assessed by the surveyors of the highways, as the damages of the land owners, to be assessed, collected, and paid, the township committee having neglected and refused to do it.
    Argued before Ogden and Potts, Justices.
   Potts, J.

A public road having been laid out in the township of Bridgewater by surveyors of the highways, and an assessment made according to law of the damages to' be sustained by the owners of land through which it is laid, and the proceedings having been brought up here by certiorari and affirmed, the counsel for the applicants now ask a mandamus to the township committee of said township to compel them to cause the damages to be assessed and collected, &c., in order that the road may be opened.

The 3d section of the supplement to the act concerning roads, Pamph. L. 1850, p. 162, provides, “that the inhabitants of any township in which any public road or highway shall be laid out or altered, in their corporate capacity, shall be liable to pay to the parties entitled to receive the same the sums assessed as damages ; and it shall be the duty of the township committee to cause all such sums as shall be necessary to pay the damages aforesaid to be assessed and collected in the same manner that all other moneys for township purposes are assessed and collected;” and the 7th section of the same supplement prohibits the overseers of highways from opening any such road until such assessments are paid.

The proceedings of the surveyors in laying out this road were affirmed at the last June term of this court. The damages assessed amounted to between six and seven hundred dollars. These damages, it appears, the township committee have not caused to be raised and paid, and the overseers of highways have not, consequently, been able to open the road. The annual assessment of taxes are directed by law to be made in the several townships in Somerset county between the first Monday of September and the fourth Tuesday of November; and as the township committee are not required by the statute to submit the question to the annual town meeting, whether the damages assessed for the opening of new roads shall be raised or not, but are directed to cause the same to be assessed and collected, they might and ought to have had the amount included in the assessment of last year.

The writ of mandamus is the proper remedy to enforce public rights, and to compel officers to do their duty. Willcox on Municipal Corporations 356 (14 Law Lib. 194); Rex. v. Everet, Cases Temp. Hardwicke 261; 5 Com. Dig., Tit. Man damus a, 24. It lies to justices of the peace to compel them to make a rate to reimburse money expended, by a surveyor of the highways, case, 1Hassel’s Strange 211; to the supervisors of a county to audit and allow to a constable his account for removing paupers from one town to another, People v. Supervisor of Albany, 12 John. R. 414; to the supervisors of the roads of a township to compel them to pay an order drawn upon them by justices of the peace under the directions of an act of the legislature, Commonwealth v. Johnson, 2 Binney 275; and to an overseer of the highway to compel him to open, clear out, and make a certain road within the limit and division assigned to him by the township committee, State v. Holliday, 3 Halst. 205. In the case before us, the act expressly makes it the duty of the township committee to cause the damages to be assessed and collected: the road cannot be opened until these damages are raised and paid. It is a clear case for a mandamus.

But as this question comes up under a recent statute, I am not willing to grant the writ without giving the township committee an opportunity to discharge the duty enjoined upon them by the statute voluntarily, or to be heard if they desire it; and therefore let a rule to show cause why a mandamus should not' issue be entered.

Ogden, J., concurred.  