People ex rel. Goldsmith v. Highway Commissioners

Campbell J. The relator complains of the action of a board of highway commissioners in discontinuing a highway. Among other objections it is urged that no legal notice appears to have been given. The statute requires that when application is made to the commissioners, a Avritten notice must be given stating the object of the application, describing the premises, and designating the time and place of meeting of the board. This notice is required to be served by the commissioners, or one of them, on the owners or occupants of lands through which the road passes, either personally, or by copy left at the residence of such owner or occupant, and by posting up such notices in three public places in the township. A copy of the notice is to be appended to the return of the commissioners. — L. 1861, p. 256, 257. The return of sendee on the notice in this case, recites that it Avas served “ upon each of the persons living upon, and interested in said road therein described,” and, also, that the commissioner “posted three notices, as required by law.” We think this proof insufficient. In order to comply with [532] the statute we think it should appear upon what particular persons the notice was served, and whether served by copy left at the residence, or personally, in order that there may be distinct proof of the parties bound by such notice. Such a return as is here given is altogether uncertain. Had names been given, it might have enabled the commissioners and the parties interested to ascertain with certainty whether any owner or occupant entitled to be heard had been loft out, and whether, therefore, the proceedings could or could not be maintained. The same remark will apply to the designation of the ptiblic places where the notices were posted. The return should show where those places were; for it is the duty of the board not to proceed without being satisfied upon this point. The practice has always required such returns to state specific facts, from which the sufficiency of the service may be determined by the tribunal which is to act, instead of by the officer who serves,process. The notice, being a necessary prerequisite to the exercise of jurisdiction, the proceedings are irregular for want of record proof of it, and' the order of the commissioners must, therefore, be quashed. The other Justices concurred.