Strachan v. Brown

Campbell, C. J. This is a proceeding to review the action of the township drain commissioner in laying-out a drain. Several questions are raised on the record, but an important jurisdictional difficulty renders the rest unimportant. Instead of summoning a jury, the drain commissioner applied to the judge of probate for the appointment of three commissioners to serve in the place of jurors. This application was made ex parte, and the commissioners so appointed acted also ex parte in determining the necessity of the work and the damages to be allowed. If jurors had been summoned, the law provides that the land owner refusing to release a right of way shall be at liberty to strike off names from the panel. And the statute plainly contemplates that the party may always be present, and look after his rights. It therefore involves the necessity of either proceeding without a break after the first notice to appear, or else of giving some adequate notice of all suspended or adjourned proceedings. See L. 1875 (No. 140), p. 166, et seq. The provision concerning, commissioners is very brief. The drain commissioner is authorized to “apply to the probate court of his county for the appointment of three commissioners to act in place of said jury, who shall take the same oath and perform the same duties prescribed above for said jury.” § 5. It is the action of these commissioners which finally disposes of the rights of the land owner. He is as much concerned in securing competent and impartial commissioners, as jurors, and unless he can be heard [170] at the time of their appointment his rights may be seriously endangered. The law regards the drain commissioner as representing in some degree adverse interests. He acts as an adverse representative in striking off jurors, and possesses the very dangerous discretion of choosing to dispense with jurors altogether. A person acting in such a capacity cannot be allowed to proceed by his own suggestions before the probate court, without giving his adversary a chance to object to improper commissioners and suggest proper ones. There can be no presumption that the probate court will be able to secure entirely impartial commissioners, when no one is present to scrutinize them. The judge can have no means of searching out possible objections. It would be quite as proper to allow a jury to be summoned without any opportunity of objection, as to permit commissioners with the same functions to be thus selected. We must hold, as was held in Swan v. Williams, 2 Mich., 427, that although the statute should be silent on the subject of notice, its necessity is implied, where private property is invaded. Probably the reason why no express provision is made for notice of this application may be found in the fact that juries are the rule and commissioners the exception, and in case of juries, the proceedings are intended to be continuous and the original notice would secure to the party knowledge of all the subsequent proceedings. As already suggested, in case of adjournments or intervals, some method of information must be found, because the presence of the party opposing is assumed throughout. We have no doubt the statute designed the same fullness of notice in case of the choice of commissioners, not only of the time and place of their appointment, but also of the time and place of their meeting, so that all parties interested may be heard and may introduce their proofs if they choose to do so. We think these proceedings are fatally defective in having been taken without any such notice. The stat [171] ute makes the duties of jurors and commissioners identical in all respects, and certainly never could have been designed to destroy the means of securing either an impartial choice of persons, or impartial action of those chosen. The proceedings must be quashed, but without costs. The other Justices concurred.