p. 537Commissioners of Highways of the Town of Kinderhook, against Claw and another.Headnote
On an appeal dsíon^f the of WghwayTto judges°of the Court of Comder the 36111 section of the actio regulate highvatfs(sess. 36. c. 33. 2 N. *e ^ 1!le commissioners is reversed, a cer tiorari will lie, on the behalf ¿¡ssioners?”to proc°¿d¡ngsth* thí*r¡ghturto ^nblingfT PH1'00?1* atld belonging as well 10 the commissioners as to the ap-peal from the decision (“ ' i of the ofm™ghways] ía}!nge0ut° a‘í tering, &c. a highway, the appellant must give notice of apcp0mLbinotice was not given, sioners “may bring a certio rari, on which the proceedings on the appeal will be reversed; It is not sufficient that notice was given to the town clerk.
Wherever magistrates proceed judicially, both the parties to the proceedings are entitled to] be heard, and notice to both is indispensably requisite, notwithstanding there i¡s no direction in the*, aetby which the tribunal is constituted, that notice shall be given.
IN ERROR, on certiorari to three of the Judges of the Court of Common Pleas, of the county of Columbia, to whom an appeal had been made by the defendants in error, under the 36th section of the act to regulate highways, sess. -36. c. 33. (2 JV. R. L. 282.) against a determination of the plaintiffs in error, relative to the regulating and altering a 1 , _ . n TT, 7 j 7 . ® highway in the town of Kinderhook, in the county of Co- , , . tumbía.
The affidavit of the plaintiffs, on which the certiorari was allowed, alleged, that no notice had been given to them, or i rr* 7 7 7 to the town cleric of the town of Kinderhook, of the appeal, _ . i rr 7 and that their decision had been reversed on an ex parte hearing. It appeared, however, from the return of the Judges of the Court of Common Pleas, that the town clerk did attend at the hearing, and produced the records of the town in relation to the subject of the appeal; but in their additional return they stated, that they do not know that . , any notice was given to the plaintiffs; and that it was stated , to them by the attorney for the defendants, that the act did not require any notice; and that upon examining the act, they decided that no notice was required. tu i . . „ i he decision of road by the Judges. the plaintiffs in error was reversed, solely upon testimony adduced by the defendants, without any examination of the
Vanderpool, for the plaintiffs,
contended, that the commisfioncrs of highways ought to have had notice of the appeal. Although the statute did not require notice to be given, yet the act to be performed being judicial, a notice was neces
p. 538sary. (Bouton v. Neilson, 3 Johns. Rep. 474 . Rathbun v. Miller, 5 Johns. Rep. 281 .) A certiorari lies in this case, to bring the proceedings before this court. (Lawton v. Commissioners of Highways of Cambridge, 2 Caines’ Rep. 179 .)Van Burén, (Attorney General,)
insisted, that as the statute did not require any notice to be given either to the owners of the land or to the Commissioners, on an appeal from their decision, it was not necessary. In all those cases in which á notice was deemed necessary, the act specially required it to be given, as in the 6th, 20th, 38th, ■and 40th sections.delivered the opinion of the court. The point made by the plaintiffs in error, is, that their proceedings in regulating and altering the road in question, have been reversed on appeal to three Judges of the Court of 'Common Pleas, without any notice having been given to them of the bringing of such appeal, and of the time and -place for hearing .and deciding it. That a certiorari lies .to the judges -to remove the proceedings had before them on appeal from the commissioners of highways, into this court, was decided in the case of Lawton and others v. The Commissioners, &c. of the Town of Cambridge. ( 2 Caines Rep. 179 .) The ceriiorari there was brought by the owners of the land against the commissioners of highways and there can be no question that the right to remove the proceedings on the appeal into this court is reciprocal. The duty imposed upon the judges is strictly judicial ; they are to exercise a discretion, and to decide, after inquiring into ell the circumstances of the case; in every proceeding of such a nature, both parties are entitled to be heard, and notice to both is indispensably requisite. This principle has been so long and so frequently settled, that it is unnecessary to cite cases in support of it. There is a peculiar propriety in requiring notice to be given in appeals from the commissioners under the highway act. They act under their oath of office, in the discharge of a public trust, and, it is to be presumed, in strict conformity
p. 539to all the requirements of the statute. An appeal to three judges opens the whole matter; and if the proceedings of the commissioners are liable to be reversed, without notice, upon the mere
ex parte allegations and proofs of the plaintiff, the probability is, that their determinations would be overturned in every instance. If notice of the appeal he necessary at all, it clearly must he given to the commissioners. It is their act which is sought to be set aside; they know the facts upon which they have founded their proceedings, which it is their duty to defend and maintain, as the representatives of the town, in all matters pertaining to the regulating, altering, or laying out of roads and highways. Notice to the town clerk would be altogether useless, though in this case, no notice of the appeal was even given to him. The opinion of the court is, that the decision of" the three judges on the appeal must be reversed.
Judgment accordingly.