Kent v. Village of Enosburg Falls, 71 Vt. 255

Kent v. Village of Enosburg Falls

71 Vt. 255 | Vt. | 1899

Rowell, J.

These are appeals from sewer assessments by the trustees of the defendant village. The primary question is one of jurisdiction, which can be properly raised on these appeals. Boyden and Herrick v. The Village of Brattleboro, 65 Vt. 504.

*256The defendant’s charter authorizes its trustees, on the application in writing of five or more freeholders and lawful voters of the village, to make and maintain common sewers when the public health or convenience requires their construction, and to assess abutting landowners benefitted thereby. This makes the question of whether the public health or convenience requires the construction of a sewer a jurisdictional fact, and the establishment of it by the trustees themselves is necessary in order to confer jurisdiction and to enable them to act legally in the concrete case. Now it does not affirmatively appear in these cases that the trustees found that fact; but the village claims that it must be taken that they did find it, because they voted to grant the prayer of the petition asking for the sewer, and proceeded to construct it accordingly. But as this is a sessions proceeding, the exercise of jurisdiction does not imply a previous ascertainment of the facts necessary to confer it. Nothing is presumed in favor of the jurisdiction of boards and inferior courts exercising special and limited statutory powers not according to the course of the common law, but the facts that confer jurisdiction must affirmatively appear. This has often been held in this State. Bates v. Hazeltine, 1 Vt. 81; Barrett v. Crane, 16 Vt. 246; Hewes v. Andover, 16 Vt. 510. And the rule is the same elsewhere, with some exceptions. 12 Ency. Pl. & Pr. 176, 212, 213; 1 Smith Lead. Cas. [*816; 2 Whart. Ev. § 1308; Carratt v. Morley, 1 Q. B. 18.

If the rule were not so, there would be no distinction between inferior tribunals and courts of general jurisdiction; for when it is shown that an inferior tribunal had jurisdiction, the maxim that all acts are presumed to have been rightly and regularly done, applies to it the same as to a court of general jurisdiction. 12 Ency. Pl. & Pr. 201, 202 ; 1 Smith Lead. Cas. 817*].

The finding by the commissioners appointed by the county court that said jurisdictional fact existed is of no avail, *257because, as we Have said, it was for the trustees to find that fact.

The petition herein is not good, as it does not show on its face that the requisite number, nor indeed any, of the signers thereof were freeholders and legal voters of the village. This it should show, as those are necessary jurisdictional facts; and in sessions proceedings, of which this is one, jurisdiction must appear on the face of the record. Hewes v. Andover, 16 Vt. 510. And see 12 Ency. Pl. & Pr. 177-8. It is unnecessary to consider whether the petition is amendable in this respect, as the other question is fatal to the judgments below.

Judgments reversed, assessments annulled and set aside, and judgment for the petitioners to recover their costs in this court and the court below.