The opinion of the court was delivered by
By the certiorari in this сase the proceedings of commissioners appointed by an act of the legislature of this state, approved March 6th, 1872, (Laws, 1872, p. 365,) to widen, grade and improve Ridge road, in the township of Union, in the county of Bergen, to a width not exceeding eighty feet, are brought up for review.
The act appoints as commissioners, James McCreary, John C. Marin, Daniеl Van Winkle, Frank Page and John IT. Poillon, with the power to fill any vacancy caused by disability, death or resignation of either. After entering upon the duties of the commission, Poillon resignеd and George Dayton was appointed in his stead.
The first objection taken to the lеgality of the proceedings is, that James A. McCreary, wdio served as one of the commissioners, was not the person named by the act for that purpose.
The first meeting of thе commissioners under the act, was held on the 6th of April, 1872, from which date until the rvork was completed in December, 1873, and the assessment made in January, 1874, James A. McCreary acted аs commissioner Avithout any question being raised by the relators •or any one else, as to his authority to act. Even if it is not now too late to raise this question, the burden must rest upon the prоsecutors to establish clearly that the person who acted is not the person nаmed and intended. There is no sufficient •evidence in the case upon which this objectiоn can be rested.
The second objection is, that the owners of a majority of
At а meeting of the commissioners held April 20th, 1872,. it was resolved that they would take immediate steрs to procure the necessary consent of the land owners..
The length of the road was eighteen thousand eight hundred and forty feet. By writings dated April, 1872, marked B1 and B 2, the owners of abоut seventeen thousand eight hundred feet of frontage,, consented that the commissionеrs should proceed to open, grade and improve the road, according to the act of the legislature.
On the 5th of the following August, a contract was made with one P. S. Page, to execute the work of improvement, the road to be sixty-six feet wide, with a stipulation that at the option of the commissioners it might be changed to eighty feet.
At the time this сontract was made, the case does not show that the requisite consent had been obtained, but on that day a committee was appointed to obtain the consent of the property owners. On the 21st day of September, ,1872, the committee reportеd that they had obtained the requisite consent to the widening of the road to eighty feet, аnd the commissioners thereupon resolved to widen it to eighty feet, ■and notified the cоntractor to that effect. James A. McCreary testifies that this second consent was signеd by the owners of ■a majority of the frontage; that he had it in his possession and laid it beforе the commissioners at their meeting, when-they examined it and determined that it was signed by the requisitе majority. He says the paper was left in his possession as secretary, and that it has sinсe been lost or mislaid, so-that he is unable to produce it. John C. Marin and Henry A. Baker alsо testify that the second consent was signed by ■the owners of a majority of the frontage, and there is no testimony in the case to contradict them. Those who signed-B 1 and B 2, must also be held to have consented to the improvement, eighty feet in width, as their consent was that the wоrk be done in conformity with the act, which authorizes-
The other objections are directed to the assessment made by the commissioners for the expenses of the work.
First. Page, Van Winkle and Marin, three of the coup. missionei’s who made the assessment, were land owners to bo assessed, and therefore necessarily judges in their own cases.
Second. The act requires the whole cost and expense of the-road to be assessed on the frontage in proportion to the benefits received by the owners thereof, while the assеssment was made on all lands liable to assessment at the same rate per lineal fоot, without any determination by the commissioners that they had any regard to the benefits received. In my opinion, these objections are insurmountable and the assessment as to the prosecutors should be set aside.
Justices Depue and Daletmple concurred.