The proceedings before the commissioners of roads and revenue were all under the 738th section of the Code. The section1 does not provide for a conditional order, but the ’ applicant having chosen to accept such, instead of standing upon his right to have an absolute order, he must comply with the condition before he can obtain the assistance of the sheriff. Here the applicant took no exception to the kind of order that was granted in the first instance, as he might have done by certiorari if he had not pleased to acquiesce. That order was, by both parties, left to stand as it was, and the applicant proceeded to comply on his part with its terms. By his subsequent petition to the commissioners he alleged that he had complied; and the truth- of this allegation was the disputed matter of fact, and the only one, which the petition presented for decision, the *340adverse party not pretfending that they had erected gates, or otherwise cleared away the obstructions complained of. After hearing evidence, the commissioners not only denied the prayer of the petition, but ordered peremptorily that the road be closed. The certiorari, be it observed, was sued out upon, and is to be confined to, the second order passed by the commissioners; it does not reach back to the original conditional order which we have mentioned. All that the second petition prayed for was a warrant directed to the sheriff, commanding him to remove the obstructions. To grant or refuse the warrant was the only judgment which the commissioners had power to render upon such a petition. Code, §738, supra. It is not insisted that the commissioners for Floyd county have any broader powers than could have been exercised by the ordinary if there had been no substitution, by special statute, of the former for the latter in respect to the supervision of roads within that county. If the evidence showed that the petitioner had complied with the condition which the previous order prescribed, the warrant to the sheriff should have issued; if, on the contrary, it failed to show such compliance, the warrant should have been denied. To supplement the denial of the warrant with an order to close tire road, or that the road be closed, was to pass quite beyond the limits of the petition upon which the commissioners were acting. The petitioner asked for bread, and they gave him a stone; for a fish, and they gave him a serpent. That they went beyond their powers in the first order, and threatened a closing of the road in the contingency specified, did not justify them in consummating the matter by the second order. Acquiescence in a void part of the first order, did not bind the petitioner to a like acquiescence in a void appendix to the second. There can be no doubt that as to the final order to close the road, the certiorari is well founded and ought to be sustained. In respect to the finding of the commissioners upon the issue of fact which they tried, the superior court should either affirm it, or else re*341verse it and order a new trial. Any direction as to locating the road or putting up gates, is no more within the scope of the proceedings, in the stage at which they have arrived, than is the closing of the road. If the petition misrepresents the fact of compliance with the condition, the prayer for a warrant ought to fail for that reason ; if it does not misrepresent the fact, the prayer ought to be granted. What can be plainer than that this .is exhaustive of the whole controversy raised by that petition ?
We reverse the judgment, with direction that the certiorari be sustained so far as closing the private way is concerned ; and as to whether a warrant to the sheriff shall issue as prayed for, that the certiorari be sustained and a new trial ordered if the judge of the superior court shall hold that the finding of the commissioneis was erroneous on the question of fact made by the petition of September 14, 1877; but if he shall hold that the evidence warranted the commissioners in finding the fact as they did, then that the certiorari be overruled as to that part of the case, and sustained as to closing the private way (with costs), but no more.
Judgment reversed.