Fitch v. Commissioners of Highways

By the Court,

Cowen, J.

The objection that a second jury could not be summoned on the disagreement of the first, and a third on the disagreement of the second, was abandoned by the counsel for the plaintiff, on the counsel for the commissioners citing 2 R. S. 458, §26, 2d ed., and the objection confined to the informality of the order and uncertainty of the certificate. The objection that the jury erred on the merits was abandoned as not examinable upon certiorari, on the authority of Birdsall v. Phillips, 17 Wendell, 464.

Was the order in due form ? The order of the 8th of May, under which the proceedings were had, is lost, and is not returned in form, scarcely in substance. Another was then drawn up, as of a previous date, the 28 th of April, which professes to be about the same in substance as that of the gth of May; and the argument may be taken to proceed on that, or the previous order which it resembles ; though it is somewhat difficult to see, from’the return, whether any order is before us which we can notice. The most favorable side for the defendants is, to take the order of the 28th of April as a representative of the order of the 8th of May, which was the one professedly acted on. Is that in due form ? The 1 R. S. 520, §129, 2d ed., provides that orders of this kind, and others made by commissioners of highways, in execution of the powers conferred by title L of ch. 14 of part 1 of the Revised Statutes, may be made by any two of the commissioners, “ provided it shall appear in the order filed by them, that all the commissioners of highways of the town met and deliberated on the subject embraced in such order; or were duly notified to attend a meeting of the commissioners, for the purpose of deliberating thereonThe order in question does not state that they all met and deliberated in this instance; the contrary appears. Then is the other side of the alternative complied with ? The order says: “ and the said George Grummond, having been duly notified, did not attend.” This differs from the words of the statute which gives the form. The recital stops with saying he was duly notified; it does not add_/or what purpose. The statute requires that the notice should be given for the purpose of deliberating on the subject of the specific encroachment, or other subject, whatever it may be ; and that the order shall expressly state the purpose of the notice. Here non constat that any purpose whatever was intimated to Grummond. The notice might have been a mere naked request. When a statute prescribes the form, the very words of an order or other summary proceeding, those words must be used, at least, as far as they can be applied to the nature and exigency of the particular proceeding. Davison v. Gill, 1 East, 64. Goss v. Jackson, 3 Esp. R. 198. According to the cases cited, the order would be a nullity ; and no penalty could be recovered against Fitch under the statute. But the order being void, does not preclude the party from treating it as voidable, and bring a certiorari to quash it at his election. Starr v. The Trustees of the Village of Rochester, 6 Wendell, 564, 567.

Then, as to the certificate of the jury. This is intended as a guide to the party who is convicted of the encroachment. In removing it, he is to conform to the certificate, which must, in the words of the statute, “ state the particulars of the encroachment.” 2 R. S. 518, §111, 2d ed. See also Spicer v. Slade, 9 Johns. R. 359, as to the degree of certainty required by the nature of this proceeding. It cannot be pretended that Fitch was particularly informed of what he was to do, without being referred to the survey of Butler. Non constat, that this survey was annexed to the certificate, nor is it so referred to that Fitch could identify it, without a knowledge of several extrinsic facts mentioned in the return. From these, he might guess what survey was intended. But it was easy to annex the survey or a copy of it, and refer to it as annexed, at least, to mention it as having been filed and remaining on file in the clerk’s office. This was not done. Twenty words would have made both the order and certificate conformable to the statute. The commissioners have preferred to load their return with extrinsic facts within their own knowledge, and some of which they say were within the knowledge of Fitch, on which it is sought to remedy the formal defects in the order, and to maintain that Fitch must have known what the jury’s certificate meant to direct. We cannot follow them out of the proceedings to notice such facts.

I much doubt, however, whether the certificate is properly before us, even if the order be so. The former was made by the jury, and is, by statute, to be filed with the town clerk, who would be the proper officer for certifying it. It is perhaps different with the commissioners’ order. See Bacon’s Abr. tit. Certiorari, (F.) No objection was taken by counsel, to our hearing and disposing of the case on the merits. The order was the judicial act of the commissioners, and they have returned it without objection. Let that be quashed, and the certificate falls of course.

Order quashed.