Cassidy v. Smith

McMillan, J. By the Court To authorize the' Town Supervisors to alter or discontinue any road or lay out any new road under the provisions of Ch. 13 of the General Statutes, it is essential, we think, that they be petitioned thereto by not less than six legal voters residing within one mile of the road to be altered, discontinued or laid out, and that a copy of such petition shall have been posted up in three of the most public places of the town at least twenty days before any action is had in relation thereto. Genl. Stat., Ch. 13, Secs. 33-4-5, pp. 194-5 ; Commr's vs. Harper, 38 Ills., 104; Cosley et al. vs. Kennedy, 38 Ills., 145. But what shall be sufficient evidence of the existence of these facts in a collateral proceeding ? The statute does not prescribe by what evidence these facts shall be established; they may therefore be proved by any competent evidence, by oral exparte testimony, or in any other mode ; nor does the statute require the preservation of the evidence by which the facts are proved; the proof therefore may never be reduced to writing. It will be seen that the only record required is the petition and the order of the supervisors, embracing the report of the surveyor and map of the survey. Genl. Stat., Ch. 13, Secs. 36-7, p. 195. Tet the facts necessary to author 132 ize the board to act must exist and be proved to the board before they proceed. It might be urged from this that it was the intention of the law makers, that from the record required by law to be kept, the regularity of the proceedings should in all cases be conclusively presumed, and to this extent we find authority. Sealy vs. Brown et*al., 1 •Gilman, 13. But we are not called upon to decide that question here, and intimate no opinion upon it. However this may be, we are of opinion that under this statute, where the order in the record required to be kept states by way of recital in the form of a legal conclusion, the existence of all the jurisdictional facts, as in this case, it is sufficient prima faeie evidence in a collateral proceeding. Barber vs. Winslow, 12 Wend., 102-4 ; Ferris et al. vs. Bramble, 5 Ohio St. R., 112; Wells et al. vs. Hicks, 37 Ills., 345; Dumars et al. vs. Francis, 15 Ills., 545-6; Fxparte Clapper, 3 Hill, 459; Van Steenbergh vs. Bigelow, 3 Wend., 42. The judgment appealed from is affirmed.