Pearsall v. Commissioners of Highways — 17 Wend. 15

Majority

p. 10

Pearsall vs. The Commissioners of Highways of the Town of North Hempstead.

Headnote

A certiorari does not lie to a justice of the peace before whom summary proceedings are had to inquire into an encroachment upon a public highway or landing place, under the “ act regulating highways and bridges in the counties of Suffolk, Queens and Kingsand where such writ has issued, upon the coming in of the return it will be quashed.

It seems that the acts of a justice in such a proceeding can not he reviewed on certiorari ¡ but that when a suit is brought to collect the penalty, and the certificate of the jury is produced in evidence, it may be objected that the proceedings before the justice were not conformable to the statute,^[1]

p. 11

Certiorari. This was a certiorari directed to a justice of the peace of the county of Queens, to bring up certain proceedings had before him on an inquiry as to an encroachment upon a highway and public landing in the county of Queens. The justice returned, that on the application of the com ■ missioners he issued a precept for a jury to inquire into the alleged encroachment, that the jury appeared, were sworn, heard the proofs [16] adduced before them, and not being able to agree upon a verdict, he discharged them, and subsequently caused a second jury to be summoned. That on the day appointed for the hearing, the party complained of as having made the encroachment, appeared and objected that the justice had no authority to cause a second jury to be summoned, which objection was overruled. He then claimed the right to inquire of the jurors, as they came to be sworn, whether they had any interest in the subject matter of inquiry, and the justice overruled the inquiry. One of the jurors making an answer which the party deemed an admission of interest, he was objected to as not indifferent, but the objection was overruled. The party also objected to the sufficiency of the notice of encroachment served upon him; which objection was also overruled. The justice returned that he did not keep, nor had ho preserved any minutes of the testimony adduced before the jury, who after hearing the proofs and allegations of the parties retired, and after deliberating together certified that the place in question had been encroached upon by the party complained of. He further returned, that the certificate of the jury was not in his possession, but was filed, as he believed, in the town clerk’s office; that he taxed the costs and issued a warrant for its collection. The. case was submitted on written arguments by

H. M. Western, for the plaintiff in error.

H. E. Davies, for the defendants in error.

By the Court,

The proceedings here correspond substantially with those prescribed in the 103d to 108th sections of the general highway act (1 R. S. 521-2). It is said by the counsel for the plaintiff in error, to differ in requiring the justice to draw out, by lot, six persons free from all exceptions', whereas under the general act, he is to swear the jury, whoever they shall be, that have been summoned by the constable. It is conceded that a certiorari will not lie to remove such a proceeding under [17] the general act, because the duties of the justice are merely ministerial ; but here it is said he has something judicial to perform. The difference, however, is merely formal. The act is directory to the justice to draw legal and qualified jurors; and it is implied in this kind of law that every person concerned in the selection of jurors should take care, as far as their prescribed line of duty will admit, to secure competent and indifferent men. The direction is often given expressly by statute. Clerks are directed to draw jurors in a particular manner, and sheriffs and constables are in the ordinary venire directed to summon lawful men in no wise of kin, &c.; but that does not constitute them judicial officers, so that a certiorari will lie to them.

The distinction is taken here with a view to avoid the force of Pugsley v Anderson (3 Wendell, 468); and see id. 471, note, for a summary of the general statute. In that case the certiorari was dismissed because the justice had no order to make, no judgment to give, no judicial act to perform. There is no difference in the two cases in this respect. It is not to be denied that the justice or the constable, on being satisfied in any way that unlawful men are convened or drawn, may dismiss them and substitute others. The justice may or may not, with the view to satisfy himself, make proper inquiries and exercise his private knowledge; but there is nothing which he is to do that can be appealed from. I understand the whole to be a preliminary proceeding with a view to settle the question of encroachment, vose

p. 12

the penalty in a summary way, instead of the common law proceeding by indictment. The remedies are concurrent. When the commissioners come into court to collect the penalty for disobeying' their order, sanctioned by the certificate of the jury, they must show themselves strictly regular, or at least that there was jurisdiction. If the proceeding does not then appear to have followed the statute, their suit goes for nothing; and there, if the court err in their proceedings, the case is open to a remedy by certiorari or writ of error according to the court in which the suit is pending,

This case is within the principle of Pugsley v. Anderson, and the writ must be dismissed as it was in that case.