People ex rel. Edwards v. Potter

Follbtt, J.: An application was made to the highway commissioner of the-town of Franklin, to lay a public highway through the inclosed and improved land of the relator. September 23,1882, the sole-highway commissioner, the town clerk and a justice of the peace of the town, met to draw a jury to inquire and certify as to the-necessity of the proposed highway, pursuant to the Revised Statutes, as amended by section 1 of chapter 696 of the Laws of 1881. (2' R. S. [7th ed.], 1239.) The section provides: “At the time and place mentioned the town clerk of such town, having received such notice that such jury is to be drawn, shall, in the presence of a justice of the peace or one of the commissioners of highways of the town, deposit in a box the names of all persons then residents of his town whose names are on the lists filed in said town clerk’s-office, of those selected and returned as jurors, pursuant to article-second, title four, chapter seven, part third of the Revised Statutes, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and shall publicly, in the presence of such justice of the peace or commissioner, draw therefrom the names of twelve persons, and shall make a certificate of such names and the purposes for which they were drawn, and shall deliver the same to the person asking for the jury, and the applicant for such jury shall pay to the said town clerk one dollar for drawing such jury.” [183] The relator was present at the drawing with his counsel. The clerk deposited in a box the names of all of the trial jurors of the town, except nineteen, fifteen of whom had signed the application for the highway, two of whom were of kin to the relator within the sixth degree, one of whom was then a non-resident of the town,, and one of whom, “Adam Lambrecht, or Lambert, was omitted by clerical error, the justice omitted to read the names.” The counsel for the relator objected to the leaving out of the box * * * each and all the names of the jurors mentioned. It does not appear that the relator or his counsel knew of the omission of the name of Lambrecht or Lambert before the drawing, or raised any special objection to the omission of this, or any particular name, or specified any ground of objection to the omission of this or any name. The jurors drawn were duly summoned, and met October 19, 1882, of which the relator had due notice. The twelve jurors were sworn, examined the route of the proposed highway, and eleven certified that the proposed highway was necessary and proper. The commissioner designated November 13, 1882, as a day on which he would decide upon the necessity of laying out the highway, of which the relator had due notice, and on which day the highway was laid out. March 10, 1883, the relator applied for and obtained this writ, because of the omission of the nineteen names from the jury box. A statute should receive a reasonable construction, one promoting instead of defeating its purposes. The end to be attained by the part of the statute quoted is the securing of an impartial jury to pass upon the necessity of the proposed highway. It is a fundamental principle of the common and statute law of this and of all civilized governments that a man shall not be a judge or a juror in his own case; and the courts will not hold that the legislature have abrogated this principle, unless it is plainly declared by statute. The language of this statute does not evince a design to permit parties to proceedings to lay out highways, to act as jurors in proceedings instituted by them. Applicants are, to all legal intents and purposes, parties. If the jury fails to certify that the proposed highway is necessary, the applicants are liable for the costs of the proceedings. (2 R. S. [7th ed.], 1240, 124b) It is very plain that applicants are not proper persons to serve as jurors and decide a [184] question which, they have predetermined, and in the decision of which they have a direct pecuniary interest. The statute contains no provision- for challenging, or excluding from the jury, persons drawn; tho intent being to exclude disqualified persons from the box before the drawing. The term, “ who are not interested in the lands through which such road is to pass, or be located,” does not limit the class to persons interested in the land as owners, occupants or lienors, but includes all persons having a direct personal and pecuniary interest in having the lands taken for the purpose of a highway. The names of the applicants were properly excluded from the box from which the jury was drawn. The name of Adam Lambrecht, or Lambert, was omitted by a clerical error. It does not appear that the relator or any person called the attention of the officers to this omission at the time; if it had been, the presumption is that the name would have been placed in the box. It is not shown or claimed that the relator was injured by this clerical mistake. It is not claimed that any of the persons who were drawn and served as jurors were disqualified or partial. This harmless clerical error did not invalidate the proceedings. A construction of this statute, so technical as contended for by the relator, would amount to a practical nullification of it. Suppose that the name of some person of kin to the relator, whose kinship was unknown to the officers, had been placed in the box and.twelve competent persons then drawn and served, would it be held that the jury was illegal and the subsequent proceedings null and void by reason of this or a like mistake? We think not. An irregularity, mistake or error in the organization of a jury, insufficient to invalidate an indictment for a felony, should not be held sufficient to invalidate a proceeding like this. (People v. Petrea, 92 N. Y., 128.). The order of the commissioner should be affirmed, with costs against the relator.