
    MATTER OF HIGHWAY.
    
      Certiorari disallowed to remove road case from Common Pleas, on the ground of not appointing a chosen freeholder of the township in which the road was laid.
    
      H. Stockton
    
    moved, on the part of the landholders, for the allowance of a certiorari to the Common Pleas of Middlesex, to remove the proceedings in case of a road. Surveyors had been appointed, and laid the road. The landholders, thinking themselves aggrieved, entered a caveat; and made application for the appointment of chosen freeholders to view the road. The court, in the appointment of freeholders, passed over one of the freeholders of the town through which the road run, and took one from another town. This, he contended, was error; that the act required the freeholders to be taken from the town through which the road run, one case excepted, that of the freeholders owning land through which the road run. The words of the act are, “ Always having regard to the appointment of the chosen freeholders of the township through which the road shall have been laid out, vacated, or altered. Provided, that no freeholder be appointed through whose land the road may run.” This exception, he contended, excluded [749] all others, and made it obligatory on the court to appoint the freeholders of the town, unless they came within the exception. He anticipated an objection arising out of the prohibitory clause in the act, to a certiorari. The act says that the “ proceedings of the freeholders shall be binding and conclusive in all ■cases, and shall not be subject to an appeal or certiorari, or to be [*] set aside for lack of form, either in the former proceeding, either of the applicants, or of the surveyors of the highways, or in that of chosen freeholders.” He said that the object of this certiorari was not to meddle with the proceeding of the freeholders, but to correct an error of the court in the appointment of them. Supposing the court had appointed freeholders of an adjoining county, was there no remedy ? The wording of the prohibitory clause in the act, in Pat. 389, is different from this act. But he contended that the jurisdiction of this court could not be taken away but by express negative words; that it was intended that-the jurisdiction should be taken away, was not sufficient; it must be done directly, and in clear and unequivocal terms, $ Bur. lOlj.0; 1 Salk. 146; 1 Lord Ray. 860; 1 Blac. Rep. 131.
    
    
      Scott, contra.
    A certiorari removes the tenor of the whole-of the proceedings below. There could not have been a certiorari to the proceedings of the surveyors or freeholders,, even if this act did not exist. The certiorari must, in all cases, be directed to the court ; and must remove the whole record. Again, there is no mandate in the act against going out of the town for the freeholders. The court are to have regard to their appointment. It is only recommended to the court by the legislature, to consider them while making the appointment. The court assigns a sufficient reason for I its conduct, that the freeholder rejected had given his-opinion on the question; he had prejudged the cause.
    The Attorney General, on the same side.
    The object of the certiorari asked for is to set aside the proceedings of the surveyors and chosen freeholders; and this is prohibited by the act. The bringing up the proceeding, therefore, would be nugatory.
    
      JR,. Stockton, in reply.
    The proceedings of the Common Pleas, is not warranted by law. This is the error of the court, not of the chosen freeholders. The [*] freeholders appointed, are not the freeholders authorized by law, to determine the question put to them; and therefore, the certificate is void, and ought not to be recorded. It is an excess of authority in the court. The language of the act is not recommendatory, but mandatory, from the subject matter.
   Kirkpatkigk, C. J.

Was of opinion that [750] the true construction of the act was, that the chosen freeholders were to be appointed from the township through which the road run, with the single exception mentioned in the act; and that as the act had not been pursued, he thought, in this case, a certiorari ought to be allowed.

Rosselh, J.

From the whole view of the subject, was of opinion, against the certiorari.

PekítiítGrTOsr, J.

It is evident the intention of the maker of the act, that the proceedings should not be removed by a certiorari, although the prohibition is obscurely expressed; but he would not say but that a case might arise where it would be proper for this court to interpose. For instance, the extreme case put by Mr. Stockton. The allowance of a certiorari to a special jurisdiction, is in the sound discretion of the court: and he was not sure that the Common Pleas had done wrong. He inclined to the construction given by the Chief Justice to this clause of the act. But it was certainly obscurely worded; he admitted, that statutes could not be recommendatory; they were simple commands; you shall, or you shall not. But when statutes are ambiguously -worded it is the duty of the court to search for the motive and intention of the Legislature. It has shut out the case of interest, and he had no doubt that if this case of bias had been put to it, it would also have done the same thing in this case too. In any view of the subject, he could not think it such a case, taken altogether, as to call for the extraordinary interposition of this court.

Certiorari disallowed.

Cited in State v. Woodward, 4 Halst. 21; State v. Wood. 3 Zab. 560; State, Vanderbeck, pros., v. Blauvelt, Clark, &c., 5 Vroom, 263. 
      
       [*] 1 Another case of an application for a certiorari under this act, was considered and rejected this term, on the ground of inexpediency, by the whole court.
     