Majority
p. 674The People, ex rel. Woodward, vs. Covert and others.
Headnote
. A certiorari will not lie to remove the proceedings of persons acting as commissioners in the laying out of a highway, though it be shown that they omitted to take the oath of office within the time limited by law.Semble, that a common law certiorari will not be granted where there is an adequate remedy by appeal; nor to review the proceedings of persons who are not officers in any sense, though they have assumed to act as such.
The question whether persons acting as commissioners of highways, are such, either. ■defacto or dejure, cannot be reached by certiorari.
The acts of officers defacto are as valid, so far as the public is concerned, as though they were officers de jure.
The defendants, as commissioners of highways of the town of Newtown, laid. Out a road over the relator’s land, and
M. T. Reynolds,
on his behalf, now moved for a certiorari to remove the proceedings into this court, on the • ground that the defendants, although they had been duly elected commissioners, had not taken the oath of office within the time prescribed by law. They, had taken the oath-before proceeding to lay out the road, but, as was alleged, not until after the ten days allowed by law had expired. It was insisted that the defendants had forfeited their offices, and consequently that they had no jurisdiction to lay out the road.
It is impossible to grant this motion for several reasons. 1. If the defendants are commissioners, the remedy is by appeal to the county judges. 2. If they are not commissioners, nothing has been done. Their act in laying out the road is merely void. 3. A certiorari will not reach the question. It brings up nothing but the record, which states that the road was laid out by the defendants as commissioners. 4, The defendants are clearly commissioners de facto, and,their acts are as valid, so far as the public is concerned, as though they were commissioners de jure.
Motion denied.