Brazee v. Raymond

Morse, J. Certiorari to review the proceedings of the township board of Kollin, Lenawee county, upon an appeal taken by the plaintiff from the action of the highway commissioner of said township in laying out a highway. From the return of the township board, it appears very clearly that they acquired no jurisdiction to act upon the appeal. There was no proof before them, when they met and acted, that the appellant or the commissioner had been given the notice of the meeting required by the statute, nor is there any showing that either the appellant or the commissioner was present. The want of due proof of notice is fatal: Tefft v. Township Board of Hamtramck, 38 Mich. 558 ; Prescott v. Patterson, 44 Mich. 525. The recital of the fact in the determination of the board, as follows : “ And whereas, at least ten days’ notice of the hearing of said appeal has been given to the said commissioner and the said appellant” — is not sufficient. The notice was a prerequisite to the right of the board to proceed, and the proof that it was given cannot be inferred or established from a recital in the order that it was done: Dupont v. Highway Com'rs of Hamtramck, 28 Mich. 362; Tefft v. Hamtramck, supra. The proceedings of the township board were therefore unlawful, and the order affirming the action of the commissioner must be quashed. We cannot, under this writ, enter irpon any investigation [550] into the action of the highway commissioner. He is not made a party to the writ, and has made no return to us of his action. It is true, the township board has returned to this Court all the papers and proceedings appertaining to the laying out of this highway on file or of record in the township clerk’s office, but we are not willing to pass upon the action of the commissioner in a proceeding of this kind, to which he is not a party. The other Justices concurred.