
    William M'Kenna, vs. The Commissioners of the roads of Lancaster District.
    
      In 1801, TV. B. and J. S. the owners of the land on which the present village of Lancaster is situated, petitioned the-legislature that a village might he laid out and established; by a resolution of the legislature, this was ordered to be done and a plat of the village to be returned: By an act of 1820, the com-tfiissioners of roads were directed to open the streets of the village, according to the original plan; which they proceeded, to execute: Plaintiff, who had been -in possession of the land over which the streets were attempted to be opened, and who derived his title from TV. B. and J. S. declared in prohibition against the commissioners, loho pleaded the act of 1820 and that they acted in conformity thereto: Plaintiff replied that there was no original plan of the village: upon proof of the existence of such plan and verdict hibition dismissed. of a jury to-that effect, pro-
    
    
      IThe act of 1820 toas no violation of the constitutional-right of plaintiff.
    
    The declaration in prohibition stated that the plaintiff was seised and possessed of a certain freehold, near the village of Lancaster, and that the commissioners of the roads, without tendering him compensation, were proceeding to lay out many streets which the public good did not require, in violation of his constitutional and legal rights.
    The commissioners justified under an act of the legislature passed in 1820, — authorising them to lay out, or rather to open certain streets in the village of Lancaster, aeceording to the original plan of said village, recorded in the office of the secretary of state. — The plaintiff replied, that there, was no original plan of the village of Lancaster, by which his lands were liable to the intrusion and trespass of the commissioners, Src. Upon which issue was joined.
    The plaintiff then exhibited Ins title; a deed from William Parkley for 22 acres, 7th Oct'. 1808; bounded south fewest,by White_ street; 2 a deed from John Simpson, — Nov; 1815, fry land lying in and adjoining the village of Lancaster, calling for several of the streets .of the village; — 3—a deed from Abrn., Perry 2,. Sept. 1809, near the village of Lancaster; 4, a grant. 20 May, 1809, for
    
      It appeared that in the year, 1801, a petition was pi'*: seated to the Legislature by John Simpson and William Barb-ley, the owners of the land, praying that a village migh '. be laid out at Lancaster court house. In consequence of which, a resolution was passed authorizing certain commissioners to lay out and make a plat of a village and return the same at the next setting of the legislature. A certificate of the secretary of state was here produced, stating that he had examined the records of his office, and that he could find no plat of the village filed there: That among the miscellaneous records, he. found the record of a plat which had been received as a plat of the said village, by a resolution of the legislature in 1808, and ordered to be recorded. This purported to be die copy oi a plat made out in 18Ü2, and signed by the commissioners ap-s pointed by the resolution of 1801. When it was returned to the Legislature did not appear.
    Mr. Samuel Dunlap was called. This witness was a very old man: — He said that during the time the county court was held at Lancaster, a village was laid out there. He did not know by what authority. John Simpson, William Simpson, William Barkley, Eli Alexander, and himself were the commissioners. He afterwards understood that another plat was made out; whether according to the former he did not know. Some of the streets in the first plat were named differently from the latter.
    Mr. Ingram, saw a plat of the village seven or eight years ago. Mr. Belli saw one eight or nine years ago; does not know what became of it, except by hearsay; was once present when Purdy applied to M‘Kenna, the plaintiff, for the plat; he refused to let him have it. Mr. Bar was present when the public land was first laid out for the county court. The mash stfeei was then run out
    It ought here to be remarked that it did not appear that any of the streets were ever actually run out during the time of the county courts, except the Main-street, and perhaps one. cross street; nor were there any buildings except on those streets. Mr. Crocket saw a j.lat of the village about twelve years ago.
    Mr. Perry built a house in Lancaster about twenty years ego, on Gay-street; the lot was 99 feet front and 164 feet deep.
    
      Thomas Lee received the original plat of the village from John Simpson, about 14 or 15 years ago.. The writing attached to it' was in the hand of Mr. Eli Alexander; does not recollect who else had signed it. A deed was here produced, dated 2813, referring to the plat of the village.
    Mr. Daniel was employed by Mr, Purdy (who is since dead) to lay off a piece of ground for him. He wanted the plat of the town for that purpose, Purdy told him he once had it and had let M'Kenna have it. He went with Purdy to M'Kenna to get it: Purdy demanded it of him, but did not get it; some warm words -passed between them on the occasion. He heard M'Kenna afterwards regret what had happenéd; hé acknowledged that he-had it, but said that it was mislaid and he could not then find it.
    CoL Montgomery once saw a plat of the town in the hands of Mr. Purdy; whether the original or not, he did not know: It appeared to be a very old paper and much broken.
    Mr. John Richardson had seen the plat of the village á great many years ago. A deed was here introduced, dated in 1802, referring to a stx'eet called Jefferson. No such street appeared in the plat recorded in the secretary’s office. A deed of John Simpson was introduced, calling the village ville or Lancaster. - #
    A great many witxxesses were introduced to gh¡% theiff-' opinions with regard to the necessity of opening the stusátK» Most of the persons living in the' village were of opinion that? there was' a necessity for opening some of the streets, and/ that opening the others was a convenience to the'village. Other persons experienced no inconvenience from the'streets being enclosed. Upon this evidence ,lhe jury found the'followihg verdict: « We find the plan shewn to be a copy of the original" ordered to be made by the legislature.” That fact being found, the court dismissed the prohibition. This was á motion 'for a new trial on the several grounds stated in the'opinion.
   The opinion of the court was delivered by

Mr. Justice JYott.

The first ground taken for a new trial in this case is: Be* Cause there was no legal proof of the orignal plan of the town. The proof was the testimony of several respectable witnesses, that they had, .for a great many years past seen a map, purporting to be the plan of the village of Lancaster; that it had often been referred to as such, by persons wishing to have a survey of lots; that, it had been traced into the hands of the plaintiff ill this case, since which it had never been seen; he could have produced it, if it were not the true plan of the village. In ad-., dition to this, were the resolution of the legislature of 1801, •directing such a village to be laid out; the resolution of 1808, recognizing it and directing it to be recorded, and the certificate of the secretary of state, that such a plan had been recorded, pursuantto the resolution of the legislature The court is satisfied that the testimony was sufficient to authorise a verdict establishing that fact,

The second ground is: Because there was proof that there was another original plan, antecedent to the one established by the. verdict.

The third ground is: Because the act not referring to any precise plan, is void for uncertainty.

These two grounds may be considered together. The only evidence ^of the existence of the first plan contended for, was that the owners of the land had, without any particular authority, caused-two streets to be laid out at right angles with each other; that they had given them names and had alsonam ed the village. But it did not appear that any other streets had ever been laid out, or that any plan of the villagt had ever been delineated upon paper. It is not now necessary to go into the inquiry, whether an individual can lay out a village on his own land and dedicate certain portions of it to public use as streets; for the same individuals afterwards applied to the legislature to lay out a village under their authority, which was accordingly done. And there can be bo doubt after the legislature had required a village to be laid out, and had directed the plan tó be recorded, but that the act of 1820, directing the streets to be opened according to the original plan, must be construed to have relation to the plan thus di-, rected to be made out and recorded.

The fourth ground is: Because the jury should have found either that the streets were public property at the time of the passage of the act of 1820, or that the freehold was in M'Kenna until that time.

The only question which was or which could have been submitted to the jury was, whether a plan of the town had ever been made out in pursuance of the resolution of the legislature. The conclusion to be drawn from the establishment of that fact was a question of law, which belonged exclusively to the court to determine, and ought not to have been submitted to the jury.

The two last grounds submit to tLe consideration of the' court, the constitutionality of the act of 1820, which directs the streets to be opened.

The right to declare an act of the Legislature void which conflicts with the constitution, has been frequently recognised by the court; such a power results from the organization of our government. The constitution is the supreme law of the land. It is the law which the judges are sworn to support in preference to all others. But to declare an act of the legislature fo' be void, is an exercise of the highest authority that can belong to a judicial tribunal. It ought not therefore to be exercised, except where the necessity is clear and manifest. But the court do not discover in this case any such violation of the. constitutional rights of the plaintiff.

The village was laid out in the year 1802, with the consent of the owners of the land. The plaintiff became.a purchaser from those persons several years afterwards. The deeds under which he claims, calls for the village of Lancaster; they call for certain streets in that village, the names of which are. not to be found any where, except in the map . now established. These streets had then, by a resolution of the legislature and the consent of. the owners of the land, been dedicated *to the use of the public, of which he must have had notice when he pur-¿based. He purchased therefore subject to this claim of the public. The question does not arise, whether private property can be taken for public purposes without making compensation. The act only appropriates to the use. for which it was originally intended, property already dedicated to public purposes, and over which the plaintiff was exercising an unreserved authority. The court below therefore was correct in dismissing the prohibition. With regard to the expediency of the measure, that was a question for the consideration of the legislature. It is a subject over which they still have the same controul aud may suffer them again to be enclosed, if the public good does not require them to be kept Open. The motion must be refused.

C'lendinen, and Hill, for motion.

St D. Miller, contra.

Johnson,, Huger, and Richardson, Justices, concurred..  