7 Wend. 264 | N.Y. Sup. Ct. | 1831
The appeal from the détermination 0f the commissioners was equivalent to saying that the > road was necessary and proper, and was therefore a sufficient compliance with the act. The fact that twenty instead of twelve freeholders, certified that the necessity of the road, is no cause for reversing the decision of the judges. Independent of the consideration that this objection comes with a bad grace from the commissioners, who, themselves, acted upon the certificate of the freeholders, there is no force in it. The commissioners have no authority to act until twelve freeholders certify to the necessity and propriety of the road ; but where twenty unite in a representation, twelve of course concur. The maxim that the greater includes the less, applies. Twelve freeholders, not interested in the lands through which the road was laid, not' of kin to the owners thereof, having made the required certificate,'the fact that Jive others, who were of kin to the owners of the land, concurred in opinion with them, does not vitiate the certificate : all the statute requires is that twelve .freeholders shall certify. 1 R. S. 514, § 58. T.he objection that one of the judges who decided the appeal had before passed upon the same question, might be considered as warranted by the provision in the statutes forbidding officers acting in appellate tribunals from taking part in the decision of matters before determined by them, 2 R. S. 275, § 3, had it been urged when the question was under consideration before the judges ; but it was not: the appeal was contested'solely upon the merits, and the commissioners, are now too late tp avail themselves of the objection. It might' have been, and probably was waived. It would promote litigation, and contravene well established principles, now to allow it as well taken. The decision of the judges, therefore is confirmed.
