People v. Champion

16 Johns. 61 | N.Y. Sup. Ct. | 1819

Spencer, J. delivered the opinion of the Court.

The principal question in this cause is, whether, after an application to the Commissioners, according to law, to lay out a road, and their refusal to do so, and on an appeal to three Judges of the Court of Common Pleas, they reverse the decision oí the Commissioners, it is lawful for the Judges to proceed and lay out the road. If it is, then a peremptory mandamus must go.

The 36th section of the act to regulate highways, (2 N. R. L. 282.) gives the right of appeal to any person who shall conceive himself aggrieved by the determination of the Commissioners, either in laying out, altering, or discontinuing, or in refusing to lay out, alter, or discontinue any road, and it declares their decision, or that of any two of them, to be conclusive in the premises. The 37th section enacts, that no road which has been fixed by the decision of the Judges, on an appeal, shall be taken up, or altered, but by the order of the Judges. The act, (40th sess. ch. 43.) makes some immaterial alterations as to the time of appeal. It cannot admit of a doubt, that any person may appeal, whether he be, in fact, aggrieved or not. It satisfies the statute, if he conceives himself to be aggrieved, It is equally clear, that the power, of the Judges extends to hearing appeals, where. the Commissioners, as in this case, refuse to lay out a road; and, construing the 36th and 37th sections together, the Judges have the power, in cases where the Commissioners refuse to. lay out a road, to lay it out themselves. This power results from a want of any provision in the act, requiring the Commissioners to lay it out, after the Judges have decided, and from the provisions of the 37th section already mentioned.

The mandamus hen must go, unless the formal objections are valid. It has been urged, that, non constat, the Commissioners to whom the alternative mandamus was directed, are now in office; and that, if they are not, the peremptory mandamus will be unavailing. It was not necessary, in the first instance, to issue the writ to any persons, by name; for this is not a proceeding against any individual, until an attachment issues. The relator might omit the names and proceed against the Commissioners of the town, whoever they may be; and if, as Commissioners, they disobeyed our mandate, they would incur a personal responsibility.

It is objected, that under the statute, (1 N. R. L. 107.) the relator cannot demur to the return to the mandamus, and that his course is, where the return admits the facts warranting a peremptory mandamus, to move for that writ at once. But, this objection is made with an ill grace, after a joinder in demurrer. The act provides, that when a return shall be made to a mandamus, it shall be lawful for the person suing or prosecuting such writ, to plead to, or traverse all, or any of the material facts contained within the return, to which the person making the return shall reply, take issue, or demur; and if a verdict shall be found for the person suing out the writ, or judgment be given for him upon demurrer, &c. he shall recover his damages and costs.

This authorizes the party prosecuting, to demur; for a demurrer is a plea, and it would he absurd to require a traverse of the return, when the facts are truly stated. We ought to encourage and promote this method of testing the validity of a return, for, if either party is dissatisfied with the judgment of this Court, he has his remedy on the record, by a writ of error. The plaintiff must have judgmerit, which will authorize the issuing a peremptory man ■ ¿amllf¡ to the Commissioners, by name, or to them merely as Commissioners. Whether he can execute a writ of inquiry under the statute, and recover his costs, are questions not now before the court. It is, however, certain, that no costs can be recovered, unless damages are found. (2 Sir. 1051.)

Judgment for plaintiff, and a peremptory mandamus.