People ex rel. Seward v. Sly — 4 Hill & Den. 593

Majority

p. 593

The People ex rel. Seward vs. Sly and others.

Headnote

Where a road district was formed from parts of two districts, and was afterwards ordered to be discontinued by the commissioners of highways: held, that the order was valid, though it did not expressly provide for embracing the territory to which it related within any other road district, the effect being to restore the two districts to their original limits.

Road district number 83 in the town of Warwick, Orange county, was formed- from parts of road districts number 37 and 64. At a meeting of the commissioners of highways of the town in March, 1840, held for the purpose of deciding upon applications to alter the districts, they made an order that district number 83 be discontinued. After the annual town meeting in 1842, the relator applied to the justices to appoint an overseer of highways for district number 83, on the ground that the town had neglected to appoint one. (1 R. S. 347, §

p. 594

31.) The justices refused to appoint, for the reason, among others, that there was no such district. These facts appeared on the return to an alternative mandamus directed to the justices requiring them to appoint or show cause, &c.

A. Taber, for the relator,

now moved for a peremptory writ. He insisted that although the commissioners had power to alter the districts, they were bound to district the whole town, and could not leave a particular road out of the limits of any district. (1 R. S. 501, § 1, sub. 5.)

R. J. Hilton, contra.

By the Court,

The effect of discontinuing dis= trict number 83 was, I think, to restore the original limits of the two districts out of which number 83 was carved ; and if this be so, the power of the commissioners- to make the order cannot be doubted. The justices were therefore right in refusing to appoint an overseer for number 83, as there was no such district. ,

There has been a great deal of controversy about the “ Quaker creek road,” and it may be that the town officers have dealt hardly with the relator : but I do not see' that he has any remedy in this form.

^lotion denied',