People ex rel. Wait v. Eggleston

Balcom, Justice. The statute which the relator claims an-» Ihorized Hale and the Waits to apply for the laying out of a public highway through their own lands and the inclosed, improved and cultivated lands of Augustus Ross in Preston, reads ■as follows:— “ Every person liable to be assessed for highway labor, and Owning lands in a town in which he is not a resident, may apply to the commissioners of highways of the town in which the lands are situated, to alter, discontinue, or to lay out any road through the same.” (Laws of 1836, chap. 122, p. 163.) The defendants’ counsel insists that Hale and the Waits, who are residents of Norwich, could only apply under this statute for the laying out of a highway through their own lands in Preston, and not through the lands of Ross, He argues that the word “ same,” in the statute, belongs to the word “ lands " understood, instead of “ town.” This is an unauthorized con» struction, and is too narrow. The true construction makes the statute read so that every person liable to be assessed for highway labor, and owning lands in a town in which he is not a resident, may apply to the commissioners of highways of the town (in which the lands are situated) to alter, discontinue, oí lo lay out any road through the same town. It was clearly the intention of the legislature to place nonresidents* who own real estate in a town, and who are therein assessed for highway labor, on equal grounds with residents, as to the right to apply for the alteration, discontinuance and laying out of highways in such town. The object and intention of the legislature in enacting this statute may be resorted to in ascertaining its meaning. (The People agt. The Utica Insurance [127] Company, 15 Johns. 358; Jackson agt. Collins, 3 Cowen, 89.) Non-resident landholders wanted highways to enable them to pass to and from their lands without being trespassers; and it is fair to infer the legislature intended to authorize them to apply for the laying out of highways according lo their wants and views of what the interests of the public required. And such a construction should be given to the statute in question as will not suffer the intention of the legislature to be defeated-. (15 Johns. 358; 3 Cow. 89.) The laying out of the highway on or near the same route by two of the three referees appointed by the county judge, was a void proceeding. They laid it through the inclosed, improved and cultivated lands of Augustus Ross, without his consent.; and the applicant therefor did not give notice of any meeting of freeholders, to certify in regard to the necessity and propriety of the highway; (1 R. S. 514, § 59;) nor did he procure a certificate of twelve freeholders that such highway wao necessary and proper. (1 R. S. 514, § 58.) The referees, probably, supposed they had no authority to entertain an ob jection to their acting by reason of such irregularity. (The, Commissioners of highways of Warwick agt. The Judges of Orange County, 13 Wend. 432; but see 1 Selden, 568.) The commissioners of highways of Preston would be trespassers, if they should open the highway laid out by the referees, or cause it to be worked. (Clark agt. Phelps, 4 Cow. 190.) They cannot be compelled by mandamus to open such ljighway, or to cause it to be worked. (Ex parte Clapper, 3 Hill, 458.) The defendants’ counsel contends that the decision of the referees is conclusive for the term of four years, unless sooner reversed by certiorari. It is true, the statute declares, that " their decision, or that of any two of them, shall be conclusive in the premises.” (Laws of 1847, chap. 455, § 8.) Also, that "such decision shall remain unaltered for the term oí four years from the time the same shall have been filed in the office of the town clerk.” (Laws of 1847, chap. 455, § 9.) Such, however, is the effect of the decision of referees only, when the proceed [128] mgs.upon which it is founded are not void by reason of the facts being insufficient to confer jurisdiction upon the commissioners to lay out the highway. But when the commissioners lack jurisdiction to lay out the highway applied for, and make an order refusing to lay it, the decision of referees reversing their order, añd laying out such highway, is a nullity. (Harrington agt. The People, 6 Barb. 607.) It has no more force than the judgment of a justice of the peace has in an action wherein he never obtained jurisdiction of the parties, by the service of a process, or by a voluntary appearance of the parties before him. Such a judgment is no bar to another action for the same demand included in the judgment. It has no force whatever. The proceedings on which the referees acted, including their decision, could be reversed by certiorari; (6 Wend. 564;) and so a void judgment of a justice of the peace may be reversed on appeal. (Striker agt. Mott, 6 Wend. 465; id. 564.) But a void decision or judgment does not conclude a party to it. (6 Wend. 564; 6 Barb. 607.) Void judgments and decisions are as no judgments or decisions, as to a party thereto who chooses so to consider the same; and void judgments 'and decisions never affect strangers to them. The foregoing conclusions show that the decision of the referees, laying out a highway on or near the route of the one applied for by Hale and the Waits, is entirely void, and therefore no bar to the right of the relator to require the commissioners to act upon the freeholders’ certificate that was procured by Hale and the Waits. The relator is, therefore, entitled to a peremptory mandamus, commanding the defendants, as commissioners of highways of the town of Preston, to make an order, either laying out, or refusing to lay out, the highway applied for by Hale and the Waits.