Commissioners of Highways v. Claw

Van Ness, J. delivered the opinion of the court. The point made by the plaintiffs in error, is, that their proceedings in regulating and altering the road in question, have been reversed on appeal to three Judges of the Court of 'Common Pleas, without any notice having been given to them of the bringing of such appeal, and of the time and -place for hearing .and deciding it. That a certiorari lies .to the judges -to remove the proceedings had before them on appeal from the commissioners of highways, into this court, was decided in the case of Lawton and others v. The Commissioners, &c. of the Town of Cambridge. (2 Caines Rep. 179.) The ceriiorari there was brought by the owners of the land against the commissioners of highways and there can be no question that the right to remove the proceedings on the appeal into this court is reciprocal. The duty imposed upon the judges is strictly judicial ; they are to exercise a discretion, and to decide, after inquiring into ell the circumstances of the case; in every proceeding of such a nature, both parties are entitled to be heard, and notice to both is indispensably requisite. This principle has been so long and so frequently settled, that it is unnecessary to cite cases in support of it. There is a peculiar propriety in requiring notice to be given in appeals from the commissioners under the highway act. They act under their oath of office, in the discharge of a public trust, and, it is to be presumed, in strict conformity [539] to all the requirements of the statute. An appeal to three judges opens the whole matter; and if the proceedings of the commissioners are liable to be reversed, without notice, upon the mere ex parte allegations and proofs of the plaintiff, the probability is, that their determinations would be overturned in every instance. If notice of the appeal he necessary at all, it clearly must he given to the commissioners. It is their act which is sought to be set aside; they know the facts upon which they have founded their proceedings, which it is their duty to defend and maintain, as the representatives of the town, in all matters pertaining to the regulating, altering, or laying out of roads and highways. Notice to the town clerk would be altogether useless, though in this case, no notice of the appeal was even given to him. The opinion of the court is, that the decision of" the three judges on the appeal must be reversed. Judgment accordingly.