63 N.Y. 391 | NY | 1875
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *393 The commissioners of highways made a determination to lay out the highway in question, and from that determination Mr. Lansing appealed to the county judge of Albany county, by whom referees were appointed to hear the appeal. Upon the hearing before the referees Lansing sought to assail the order of the commissioners upon the ground that it was void for want of jurisdiction in them to make it for various reasons stated. The referees declined to take any proof showing the want of such jurisdiction, holding that they were confined to an examination of the case upon the merits, upon the assumption that the order *394 appealed from was a valid order, and the sole question for our consideration is whether that was the correct view of their duty.
The Revised Statutes (1 R.S., 518) provide that every person who shall conceive himself aggrieved by any determination of the commissioners of highways, either in laying out, altering or discontinuing, or in refusing to lay out, alter or discontinue any road, may appeal to any three of the judges of the Court of Common Pleas. By the statute of 1847 (chap. 455), the appeal was required to be made to the county judge, by whom referees were to be appointed to hear the appeal; and the same powers and duties before devolved upon the judges were devolved upon them. They are required to proceed upon the appeal as soon as convenient, and to hear the proofs and allegations of the parties. If the order appealed from be affirmed, they have no further duty to perform than to make and file their order of affirmance. But if the appeal be from an order of commissioners refusing to lay out a road, then, in case they reverse the order appealed from, they must proceed and lay out the road applied for, and their decision must remain unaltered for five years.
The statutes do not specify particularly what questions shall be considered by the referees upon the appeal, and their jurisdiction must be ascertained from the spirit and policy of all the laws upon the subject. What was the mischief intended to be provided for by this appeal? Commissioners of highways are local officers who may be influenced by local feeling, private interests and prejudice in the discharge of their duties under the law. But if they act without jurisdiction their action is not binding or conclusive, and any order they make is a mere nullity, affecting no rights. Such orders can be reviewed by common-law certiorari and vacated. (Lawton v. Commissioner of Cambridge,
2 Caines' Cas., 179; Commissioners of Warwick v. Judges ofOrange county, 13 Wend., 435; Fitch v. Commissioners, etc.,of Kirkland, 22 id., 132; People v. Wheeler,
In the act "to regulate highways," passed April 8, 1801, there was a provision for appeal from the orders of highway commissioners similar to that contained in all the subsequent statutes; and as early as the case in 2 Caines (supra), decided in 1804, it was said, by Judge SPENCER, that the "authority to hear the appeal was confined to the merits alone; the fitness or unfitness of laying out the road," and such was understood to be the opinion of the court; and yet with this construction put upon the statute, the same provision as to appeals was incorporated into the Revised Laws of 1813, and into the Revised Statutes. This construction of the law remained unquestioned until the case in 13 Wendell (supra) when it was reiterated in a satisfactory opinion by Judge NELSON, concurred in by the whole court. These cases were unquestioned for many years. But there are a few recent authorities in the Supreme Court claimed to be in conflict with them. (People v. Cline, 23 Barb., 197; People v.Cortelyou, 36 id., 164; People v. Commissioners of Seward,
27 id., 94; People v. Goodwin,
In the People v. Cline the question was directly involved upon certiorari to review the decision of referees, and it was held by the General Term of the Supreme Court in the second district, that the referees might inquire into the jurisdiction of the commissioners to make the order appealed from. But the cases in 2 Caines and 13 Wendell were not referred to. InPeople v. Commissioner of Seward, the proceeding was by mandamus to compel highway commissioners to open a highway, and the question involved here was not in that case. All that was decided there was, that the court would not, by mandamus, compel commissioners to commit a trespass in laying out a road in case the proceedings to lay out the road were void for want of jurisdiction. The case in 13 Wendell was really not questioned, so far as concerns the points now under consideration. The opinion was written by Judge HOGEBOOM. There was an appeal to the Court of Appeals and the decision was affirmed, the same judge again writing the opinion. (
On the contrary, in the unreported case of People ex rel.Lansing v. Chism, decided by the General Term of the third district, which involved precisely the same questions involved in this case, Judge HOGEBOOM, who wrote several of the opinions in the cases above referred to, wrote the opinion of the court sustaining the construction placed upon the statutes in 2 Caines and 13 Wendell, and holding that the referees were confined to an examination of the merits upon the hearing of the appeal. InPeople v. Van Alstyne (3 Keyes, 37, the same case which was reported 32 Barbour, supra), Judge PORTER cited 13 Wendell, with approval; and held *398
that the jurisdiction of the referees was limited to the consideration of the case upon the merits. In People ex rel.Odle v. Kniskern (
I am therefore of opinion, both upon the weight of authority and upon a fair consideration of the objects and purposes of the statutes regulating the laying out of highways, and appeals from the determination of highway commissioners, that, upon such an appeal as was made in this case, it was the duty of the referees to consider only the merits of the case; and that they did not err in refusing to receive evidence assailing the jurisdiction of the commissioners to make the order appealed from. It is unnecessary to determine whether a different rule would apply where the commissioners had made a determination refusing to lay out a highway, and the referees, upon appeal, had reversed such determination. It may be that before they could, in such a case, be required to go further and lay the road they would have the right to inquire into the jurisdictional facts which lay at the foundation of the whole proceeding.
As the referees simply affirmed the order of the highway commissioners laying out the road, the fact that after the road was laid out by the highway commissioners the owners or occupants of some of the land placed buildings upon the route of the road can furnish no obstacle to the opening of the road, and could present no question upon the appeal.
The judgment should be affirmed, with costs.
All concur; MILLER, J., not sitting.
Judgment affirmed. *399