People ex rel. the Commissioner of Highways v. Connor

By the Court, Welles, J. There was no waiver by any of the parties, of the oath of the referees which they were required by the statute to take before proceeding to hear the appeal. It does not appear that either the relator, the applicants for the road, or the defendants, knew whether the referees had been sworn as the statute requires, or not. (2 R. S. 5th cd. 403, 404, § 123, last clause.) It was the duty of the [336] referees to be sworn, before proceeding to hear the appeal, and the parties had a right to presume they had performed that duty; and can not he charged with notice of their neglect ; and no implied waiver can ever be intended of an irrcg->' ularity or omission of which they had no notice or of which they can not be charged with notice. Besides, the parties to these proceedings had no right to waive such an irregularity as this omission of the referees to be sworn. The whole town had an interest in the proposed highway, and had a right to require that the proceedings should, in all material respects, conform to the requirements of the statute, which, in effect, declares that until the referees are sworn they are incompetent do any other act as referees. It was an act necessary to give them jurisdiction to proceed in the discharge of their-duties ; the omission of which rendered, all their acts coram non juclice and void. The cases of Howard v. Sexton, (1 Denio, 440,) and Keator v. The Ulster and Delaware Pl. R. Co., (7 How. Pr. R. 41,) relied upon by the counsel for-the defendants, have no application to the present case.. Both of those cases were civil actions, where the parties had the perfect right to waive any irregularities they'chose. [Monroe General Term, March 5, 1866. The decision of the referees reversing the determination of the relator as commissioner of highways of the town of Cohocton must therefore be reversed. I Ordered accordingly. Johnso®, Welles and E. Darwin Smith-, Justices.]