
    People v. Wheeler and others.
    
      Certiorari.—Judicial officers.
    
    On tlie hearing of a common-law o&rtiorari, where the officer is shown .to have acquired jurisdiction, the court will not notice any fact outside the record.
    A commissioner of highways is not disqualified from acting, because an applicant for the discontinuance of a highway is related to him in the ninth degree; such applicant is not a party, within the meaning of the statute."
    * Appeal from an order of the Supreme Court, setting aside, on certiorari, proceedings of the commissioners of highways of the town of Dover, discontinuing a highway.
    The return to the court set forth a record in proper form,but the commissioners,subsequently,in obedience to' an order of the supreme court, certified that one of them who had acted in the case, was a brother to the applicant for the discontinuance of the highway. On this ground, the court at general term set aside the proceedings, with costs, whereupon, the commissioners took this appeal.
    
      Barnard, for the appellants.
    
      Porter, for the respondents.
   Wright, J.

The appellants, on the application of a person liable to be assessed for highway labor, and after the certificate of twelve disinterested freeholders had been delivered to them, as required by law, made and signed an order discontinuing a road as useless and unnecessary. The order was regular, and fully complied with the requirements of the statute, and the commissioners were shown to have acquired jurisdiction over the sub j ect-ma tier.

The supreme court reversed the proceedings of the commissioners, and awarded costs against them, on the single ground, not appearing in the record, that the applicant for the discontinuance of the road was a brother of one of the commissioners who took part in the proceedings, concurred in the determination to discontinue the road, and signed the order to that effect. We think the judgment cannot be sustained, for reasons that will be briefly stated.

1. The record did not show that the applicant was related to the commissioner, and the court below assumed to act upon *a fact not appearing therein, and which the commissioners were not required by the court to return. The main inquiry, on certiorari, relates to the power or jurisdiction of the inferior tribunal, and the question can only be determined by matters appearing in the record. When an examination into collateral facts, not properly appearing in the record, is desired, to show want of power or jurisdiction, the appropriate remedy is not by certiorari. The record in this case properly included the application, the certificate of the freeholders, and the order of the commissioners; or, at most, a history and recital of all the official acts of the commissioners, in the course of the proceedings for discontinuing the road. The original return of the commissioners contained all that they were required by the exigencies of the writ to return. The record, therefore, did not, and could not, show that the applicant was a brother of one of tile commissioners; and it was only by what is called in the Case an additional return, compelled by the supreme court, that this collateral fact appeared, on which a reversal of the proceedings was grounded. The judgment, therefore, was predicated upon a fact not appearing in the record, nor called for by the exigency of the writ, and in respect to which the writ itself, though commanding divers extraneous and irrelevant matters to be certified and returned, made no allusion. The proper record of the statutory proceedings for discontinuing the road, from their inception to the making of the final order by the commissioners, shows no relationship existing between the applicant and either of the commissioners.'

2. If it were conceded that the applicant was a brother of one of the commissioners who made the order to discontinue the road, the action of such commissioner, in conjunction with his associates, was not such an irregularity, or usurpation of power, as to vitiate the proceedings. This involves the single inquiry, whether a commissioner of highways is incompetent to act, where the applicant for the discontinuance of a public road is his brother. The only judicial power exercised by the commissioner was, in deciding, in conjunction with his associates, to discontinue the road, after the certificate of the *freeh°ld-ers> ^at it was useless and unnecessary, had been delivered to them; the summoning and swearing of the freeholders were ministerial acts. It may be admitted, that the statutory provisions disqualifying a judge of any court from sitting as such, in any cause in which he would be excluded from being a juror, by reason of consanguinty or affinity to either of the parties, is but declaratory of a universal principle, applicable to all who are clothed by law with judicial functions. No judge or officer exercising judicial authority should take part in the decision of any matter or controversy, in which he is personally interested, nor in any cause in which he would be excluded as a juror, from consanguinity to either of the parties personally interested in the litigation or matter to be judicially determined. But the difficulty lies in applying the principle to the case in hand, or rather, in bringing the case within the reason of the rule. An applicant for the discontinuance of a public highway can, in no just or proper sense, be termed a party to a cause or judicial controversy. The statute empowers any person liable 'to be assessed for highway labor to initiate the proceeding, by an application in writing addressed to the commissioners of the town in which he resides, but he can do nothing more, and beyond that act, he has no control, nor is he recognised as a party in the subsequent proceedings. Indeed, the initiatory act amounts to nothing, unless the freeholders certify that the road is useless and unnecessary. It ■ is not the proceeding of the applicant, in the determination of which he has an exclusive personal interest, nor is it Ms cause, in a judicial sense. Indeed, the statute does not contemplate that the applicant should have any direct personal interest in the determination. The public, and not the applicant, are substantially the parties to the proceeding; and it is the public, and not the applicant exclusively, that is interested in, and to be affected by, the exercise of the power intrusted to the commissioners. It is on the ground of bias, imputed from interest in, or relationship to the parties interested in, a judicial controversy, that the judge is disqualified from acting; but the reason of the rule can have no application to a proceeding of this nature, wherein the really interested parties *ai*e the public, and the exercise of the judicial functions of the officer, or board of officers, is dependent on and can only follow a strict pursuit of the provisions of the statute. It would certainly surprise ‘ the public and the profession, to learn that a commissioner of highways "is legally incapacitated from acting in any proceeding for laying out or discontinuing' a public road, when the applicant is a brother or cousin of such commissioner, or even more remotely related to him. The case of Oakley v. Aspinwall (3 N. Y. 547) is no authority for such a position.

The judgment of the supreme court should be reversed, with costs of the appeal to this court.

Denio, J.

The supreme court reversed the order of the commissioners^ because the brother of one of their number Avas the applicant for the discontinuance of the highAvay. The statute disqualifying judges under certain circumstances does not reach the case; it applies only to judges of courts, and the commissioners do not fall Avithin that denomination. I do not think there is a close analogy between the cases. An act of public administration, though requiring the exercise of judgment, is quite a different thing from the dispensing of justice between man and man; arid although a public officer ought not to act in a matter in which he has a private interest, the objection is not so strong, where he is only connnected by consanguinity with a person who has such an interest. The management of the internal affairs of toAvns and villages is intrusted to such of the inhabitants as may be selected by the suffrages of the other inhabitants: and many of the subjects of administration are such as affect the private interests of a large number of the people of the town. A rule Avhich should preclude the officer from acting, in all cases where a relative Avithin the prohibited degree had an individual interest, would, I presume, be found quite inconvenient. Take the case of assessors, for instance: under the rule contended for, no assessor cou-id take part in the valuation of the property of any of his relatives within the ninth degree of consanguinity; and so of the auditing of toAvn and county charges, and many other subjects. """The common laiv disqualifies one from acting as a jiu’or in such cases, arid the statute has extended the disqualification to judges of courts; to enlarge the rule still further, so as to embrace administrative officers, requires in my opinion, an act of the legislature.

But it does not- appear that Thomas Wheeler had any pecuniary interest in the question whether the road should be discontinued or not; all that is stated is, that he Avas an inhabitant of the toAVn, and liable to be assessed for higtnvay taxes.- This Avas, no- doubt, true of the commissioners themselves, and of all of that class of officers in the several towns. True, he applied for the order of discontinuance, as any tax-paying inhabitant might have done; all such inhabitants are recognised by statute as having such a public interest as entitles them to promote such a proceeding. It may be said, that by making the application, he became a party to the proceeding, and that his position is analogous to that of a plaintiff in a suit; but I do not see that, in any event, the decision would charge or exempt him from the payment of any costs or expenses; there could be no judgement for or against him. Those who should oppose the order would be parties in the same sense; but I think that none of them sustain such a relation to the officers -who are to pass upon the motion, as litigants sustain to the judges and juries who are to try the case. The situation of Thomas Wheeler more nearly resembles that of a complainant on the trial of an indictment ; it might be good cause of challenge for favor to a juror, that he was a relative of the prosecutor, but it would not ipso facto disqualify him.

Upon the whole matter, I am of the opinion that the order was not erroneous, for the reason for which it was reversed by the surpreme court.

Judgment reversed, and proceedings of the commissioners affirmed. 
      
       It is well settled, that on a common law ceftiora/ri to commissioners of highways, the court can only notice the facts stated in the commissioners’ return. People v. Burton, 65 N. Y. 452.
     