People ex rel. Flint v. Cline

By the Court, S. B. Strong, J. The statement, in the determination or order of the commissioners, that twelve freeholders had met and decided that the proposed new road and alterations were necessary and proper, was in effect an admission by them that such freeholders were competent and unobjectionable. As however it involved the question of jurisdiction, it was not conclusive, and might be re-examined by the referees when the matter came before them. ( The People v. Goodwin, 1 Sel. 568.) [200] It seems to me, however, that at least twelve competent freeholders did meet, view the site of the proposed road, and sign a certificate that it was necessary, and would be proper, to lay it out, as the statute requires. There were fourteen in all. It is admitted that eleven were unobjectionable. One other (Reed) had married a niece of the applicant, who was also one of the owners of the land which would be required for the proposed road, and therefore the statute rendered him incompetent. Another (Bailis) was a trustee, and the remaining one (James) was the brother-in-law of another trustee, of the Baptist church, which held the title to a part "of the land to be taken for such highway. And it was contended before the referees, and decided by them, that Bailis was “ interested” in such land, and that James was “ of kin to the owner thereof,” within the intent and meaning of the statute. There is a difference in the description of the interest of the examiner, and the estate of the relative. Any interest, even a fiduciary one, in the examiner himself, might to some extent bias his mind, and be sufficient to warrant his exclusion. But it is different as to the relative. The statute requires that he should be an owner. ¡Now a trustee of a religious society is not literally an owner of its land. That is in fact owned by the society. The relative of a trustee is not therefore of kin to an owner. There can be no reason for extending this provision beyond its literal interpretation. The words “ of kin” probably include all who are related within the ninth degree ; and it is going quite as far as law or common sense would require, to decide that the laying out of a proposed new highway would be void from a want of jurisdiction, because one of the examiners was a third cousin of a personal owner. To apply the exclusion to the relatives of the trustees of a church, and others acting in a fiduciary capacity, would probably cause the abandonment of half of the new roads in the country. I am aware that four of the judges of the court of appeals decided, in the case of Oakley v. Aspinwall, (3 Comst. 547,) that a judgment was void because one of the judges, who had taken part in the decision at the earnest request of both parties, was second cousin of a party who had no interest in the controversy, and who had been, as [201] was admitted on the argument, fully indemnified. But that decision was ably opposed by Chief Justice Bronson, with whom two other judges concurred; and the doctrine has never been sustained by an actual majority of the judges of that court, and I trust it never will be. It seems to me that in this case James was competent to act; and as, including him, there were twelve competent certifiers, the referees erred in deciding that there was a want of jurisdiction and for that cause affirming the decision of the commissioners. [Kings General Term, October 14, 1856, The decision of the referees should be reversed and their order vacated. And they should be required to proceed on the appeal pursuant to the statute. Brown, S. B. Strong and Emott, Justices.]