People ex rel. Bingham v. Village of Brighton

Campbell, Ch. J. This is a certiorari to a .Justice of the Peace, residing in the village of Brighton, to bring up certain proceedings in his custody, whereby steps were had to open a street and determine damages to the land owners. The proceedings were had under § 2124 of the Compiled Laws, relating to the incorporation of villages, which provides that when the President and Trustees deem it necessary to establish streets, and cannot agree with the property owners, they may direct the Clerk to issue a venire to the Marshal or any constable, commanding him to summon and return a jury of twelve disinterested freeholders, residing without the limits of the village, to appear before any Justice of the Peace in said village, at a time to be therein stated, to enquire into the necessity of using such grounds or premises and the just compensation to be made therefor. The law requires the jurors to be sworn by the Justice, and after viewing the premises, if they deem it necessary for the village to use the lands, to inquire into and assess the damages. The Justice, upon the return of the assessment or [69] verdict is required to “render judgment therefor, confirming the same.” In the present case the Clerk of the village, who was also a Justice, in pursuance of directions from the President and Trustees, issued a proper venire, returnable before himself as such Justice. The return of the constable is in these words: “I certify that by virtue of the within precept, I have personally summoned each of the several persons below named, to appear at the time and place within mentioned.” To this was subjoined a list of twelve names. Eelator appeared before the Justice and made affidavit that he was a necessary witness, and applied to have the matter transferred to another Justice, which was refused. He also objected to the Justice because he was also village Clerk. These objections being overruled, the jury was sworn, and went out in charge of an officer to view the premises, and then returned to the Justice’s office, where they heard testimony, and then retired and brought in their verdict, signed and delivered it to the justice, who wrote out on paper a judgment of confirmation, which he after-wards entered on his docket. The jury rejected certain testimony going to show that the improvement was not necessary, as well as some other less important evidence. 'Objection is made to the jurisdiction to issue certiorari in such cases, and a motion is made to. quash the writ, as improvidently granted. The chief grounds rest upon the nature of the proceedings, and also upon the claim that there is a remedy by appeal. We think the proceedings so far judicial in their nature as to be subject to revision. The Constitution required the necessity for taking the lands and the compensation to be determined by a jury. — Const. Art. 15, § 15. — The statute requires a venire to be returnable before a Justice, and requires the Justice to render judgment upon the return, which is for damages as well as the taking of the land. No further steps are had unless some one appeals. We think [70] the case comes within the practice long followed in this State, and that the proceedings are in their nature open to review upon their legality by certiorari, unless the appeal supersedes it. But the appeal seems designed only to review the question of damages. — G. Ju. § 2124. — It does not reach the question whether the lands should be taken; and that is the chief ground of the complaint. It is claimed also that the whole proceeding is the act of the village in its corporate capacity. We do not think so. The village ' authorities decide nothing more than whether they will commence proceedings, to have the land condemned. Having so done they become moving parties in the character of plaintiffs or petitioners. The jury, which is the tribunal of decision, is required to consist of freeholders not residing in the village, and the Justice’s judgment becomes a debt against the village. The legal proceedings which appear in the record mf such a transaction, begin with the venire and end with the confirmation, and all of these are in the custody of the Justice, who has the means of making a return. He cannot return the village action — which does not appear to be judicial, and cannot go back of the venire which opens his own jurisdiction. But all subsequent matters are in' his exclusive possession after the proceedings terminate. We are, therefore, required to consider this record, to ascertain whether it is open to complaint. We think there is nothing in the objection that the same person acted as Justice and Town Clerk. The issuing of the venire was purely ministerial, and the Clerk is in no sense a party to the proceedings. As the Justice is required to reside in the village, it might easily happen that if this double official capacity disqualified, there would be no one to act at all. The statute has made no exclusion, and there is no rule of law requiring.it. Neither does the statute providing for the removal of causes from one Justice to an [71] other apply to special proceedings. It relates only to suits at law. — 2 C. L. § 8776. We think there is no doubt that under the constitutional provisions requiring the necessity for using the property, as well as the damages, to be ascertained by the jury, ( Const. Art. 18, § 2,) the jury" cannot be debarred by the action of the village authorities from determining whether the proposed improvement is required. If a road is proposed over a given line, the location of .the line determines-what land is to be taken, and to inquire whether it is necessary to -take a given parcel of land in order to lay it out on that line, would be an idle ceremony. The object of the provision was to prevent abuses in the shape of needless public works, and the jury cannot properly act upon any decision, but their own sworn belief. And, therefore, they should not reject testimony bearing upon that question. Under this statute, not being residents, they are not presumed to be fully informed of local desires or necessities, and they are bound to exercise an intelligent, as well as impartial judgment. We have deemed' it proper to refer to this subject, as there appeal's to be some misapprehension upon it. It is doubtful, whether upon this writ, we have the means of inquiring into the acts of the jury in receiving or rejecting testimony, — inasmuch as this statute provides no means for preserving evidence of such action, as has been done under some other statutes on like subjects. As the case will be disposed of on other grounds, we content ourselves with this intimation, without deciding how far the Justice is connected with the inquest. The law requires the officer to summon under the venire twelve disinterested non-resident freeholders. The law in regard to all special proceedings in derogation of private rights, requires the jurisdiction and regularity to be manifest on the face of the record, and no substantial omission can be supplied by presumption or by evidence resting in [72] parol. The officer who summons the jury is bound to show by his return that he has summoned such as answer the description in the writ. The return here does not show the jurors to have been either freeholders or non-residents. Both of these qualifications are essential to their ‘jurisdiction. The officer selects whom he pleases, and he is bound to select competent persons. There is no one authorized under this statute to rectify any of his mistakes. And the parties must depend upon his official certificate in the first instance, and have no means of correcting the panel. The regularity of the record depends upon this state of facts appearing on it. Such a jurisdictional requisite cannot be supplied or overlooked. A private citizen might as well assume to act in lieu of a judicial officer, as any but non-resident, disinterested freeholders, to sit on such an inquest. The quality must appear. It is somewhat singular that the verdict is quite as silent as the return. It does not recite anything whatever concerning the qualifications of the jurors. For this jurisdictional defect, the proceedings are invalid, and must be quashed. The other Justices concurred.