(dissenting):
The only question in this case is, were the proceedings in drawing ■the jury, who certified to the necessity of said highway, in conformity to the requirements of the statute, and did the commissioners acquire jurisdiction to make the order laying out the same.
The statute relating to the laying out of highways, as amended by chapter 696 of the Laws of 1881, under which these proceedings were had, after certain preliminaries in regard to the manner of ■obtaining a jury, provides: “ That at the time and place mentioned, the town clerk of such town having received such notice •that such jury is to be drawn, shall, in the presence of a justice of the peace, or one of the commissioners of highways of the town, ■deposit in a box the names of all persons then residents of his town, whose names are on the list filed in said town clerk’s office, of those selected and returned as jurors (pursuant to the statute therein referred to), who are not interested in the lands through which said road is to pass or be located, nor of kin to the owner thereof, and shall publicly, in the presence of said justice of the peace or com*186missioner, draw from said box the names of twelve persons, etc., who shall compose the jury.”
The town clerk neglected to deposit in the box the name of Adam Lambede or Lambert, whose name appeared in said jury list, as the return states, “ through a clerical error the justice omitted to read the name.” He also omitted to place in said box the names of fifteen other persons whose names appeared in said jury list, all of whom, including said Lambert or Lambede. were then residents of said town, although the relator was there present and requested that all said names be placed in said box. The ground of such refusal and?omission by the clerk was a decision by him that said fifteen persons having signed the application were not competent jurors, although they were not within the disqualifications imposed, not being interested in the lands or of kin to the owner.
The statute further provides if nine or more of the persons who-shall have been so drawn, not interested in the lands through which the road is to pass nor of kin to the owner, shall appear at the time and place specified in the summons, they shall be sworn as a jury. If the jury so formed shall certify to the necessity of the highway, the commissioners must, within thirty days from the date thereof, proceed to lay out said highway. The requirements of the statute must be complied with in obtaining the jury, else the commissioners will acquire no jurisdiction.
It is well settled that where the legislature has delegated the power to take the lands of a citizen in invitum,, and appropriate it to the use of the public, all the prescribed prerequisites to the exercise of that power must be strictly observed and conformed to. (In the Matter of the Application of the City of Buffalo, etc., 78 N. Y., 362; Miller v. Brown, 56 id., 383; Matter of Marsh, 71 id., 315.)
The manner of obtaining the jury is defined by statute and its provisions are imperative and must be complied with, in order to-confer jurisdiction upon the commissioner; the town clerk performing a ministerial duty only, is to put in a box the names of all persons, residents of the town, whose names appear upon the jury list made up as required by the statute, not interested in the lands through which the road is to pass, or of kin to the owner. Were the fifteen persons who applied for the laying out of the same *187within the exceptions? We think not. They did not become interested in the land by signing the petition j having done so, it is quite probable that it might be urged as an objection to their sitting as jurors to pass upon the question of the necessity for the l'oad,. but the statute does not disqualify them from acting for that reason. It is true no right of challenge exists to any of the twelve drawn and appearing. The jury provided for is not a common-law jury, since, it may be composed of less than twelve, and it is fair to presume that the legislature in omitting to use the term interested in the question, or one of like import, intended that because a freeholder has signed an application, it presented no objection and furnished no reason why under oath he might not properly pass-upon the question. Upon the question of the necessity of a highway, the laying out of which is applied for, it may be fairly inferred that many, and perhaps most of the inhabitants in the town, entertain an opinion upon the question, yet such opinion, if entertained, does not, under the statute disqualify them as jurors. At all events, whatever the"*intent may have been, it seems quite certain that these names could not properly be left out of the box, and the omission to place them in it is a fatal objection to the order-in question. The leaving out the name of Lambede or Lambert, through a clerical error, which we assume to mean in spelling the name, subjects the proceedings to the same criticism. If from any cause one name may be left out of the box, two or ten may with equal propriety, and the provisions of the statute thus evaded.
The relator was present and requested that ‘the names be placed in the box. If any objection existed to their competency, he alone was the person to interpose it, and he would hardly be in a position to avail himself of it afterwards and when the jury was drawn. At all events, it was not the duty of the clerk to pass upon the question; his duties were not judicial. It follows, that a jury not having been obtained in the manner provided by law, the commissioner acquired no jurisdiction in the premises, and that the order laying out said highway should be vacated and annulled, with costs.
Order affirmed and writ of certiorari dismissed, with fifty dollars costs.