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GALBRAITH v. LITTIECH.

(Supreme Court of Illinois, 1874. 73 Ill. 209.)

Mr. Chief Justice WALKER delivered the opinion of the court. This suit was brought by appellee, as supervisor of roads in Henderson county, before a justice of the peace, to recover a penalty from appellant for obstructing a public highway. A trial was had before the justice, and resulted in a recovery of one dollar and costs. An appeal was prosecuted to the circuit court, and a change of venue was had from that county to the Mercer circuit court. A trial was there had, resulting as it did before the justice of the peace. A motion for a new trial was entered, but overruled by the court, and the case is appealed to this court.

All the grounds urged for a new trial are of the most technical character. It is first insisted that but two of the viewers appointed by the county commissioners acted in laying out the road, and it is therefore illegal. Appellant concedes that, had all acted, the concurrence of the two would have answered the requirements of the law. Whether all three joined in the report, still we must presume that all three did act, although but two signed the report.

In the cases of Nealy v. Brown, 1 Gilman, 10, Ferris v. Ward, 4 Gilman, 499, and Dumoss v. Francis, 15 Ill. 543, it was held that on presenting the order of the county commissioners establishing the road, it would be presumed, until disproved, that all the antecedent steps required by the statute had been taken. In this case the order establishing the road was introduced, and also the report signed by two of the viewers. It did not state that the other failed or refused to act with them, and, failing to state that fact, we must presume that he was present and so acted-nor can the presumption as to that fact be overcome by parol evidence. We will presume that the county commissioners heard evidence, that the other commissioner acted, but failed to join in the report, and the presumption is not contradicted by the record. This is a complete answer to that objection.

9 The rest of the opinion is omitted. See Wigmore on Evidence, § 2534.

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But see Wilson v. Alabama Great Southern Railroad Company, 77 Miss. 714, 28 South. 567, 52 L. R. A. 357, 78 Am. St. Rep. 543 (1900): "The presence of all three members of the executive committee of the state board of health was necessary to a valid order on September 15, 1897, when the order in question was made. Laws 1894, p. 33, c. 38. This is made clear as the legislative purpose by the amendment (Laws 1898, p. 93, § 2), providing, for the first time, that 'the presence of two members of the executive committee' would do thereafter. The order in question was made by only two members; it not being shown that three were present. * Had three been present, and two made the order, this objection would have been obviated." See, also, 1 Rev. St. N. Y. (1st Ed.) pt. 1, c. 16, tit. 1, § 125: "Any two commissioners of highways of any town may make any order, in execution of the powers conferred in this title; provided it shall appear in the order filed by them that all the commissioners of highways of the town met and

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SECTION 14.—EVIDENCE OF OFFICIAL ACTION-ON DIRECT ATTACK

GILBERT v. COLUMBIA TURNPIKE CO.

(Supreme Court of Judicature of New York, 1802. 3 Johns. Cas. 107.)

Application by E. Gilbert to set aside an inquisition found by three commissioners appointed under the second section of the act amending the act establishing the Columbia Turnpike Company, passed March 28, 1800.

PER CURIAM. This is the case of a special power granted by statute, and affecting the property of individuals, which ought to be strictly pursued, and appear to be pursued, on the face of the proceedings. 4 Burr. 2244; Cowp. 26; 1 Burr. 377; 7 Term Rep. 363. This is an established rule, and it is important that it should be maintained, especially in cases which so materially interfere with private rights. It does not appear that any disagreement existed between the parties, or that in consequence of any disagreement the company applied to a judge, both of which were requisite, to authorize the appointment of commissioners. The disagreement, and consequent application, were the foundation of the whole proceedings, and without them the judge could have no jurisdiction in the case. As they do not appear, we are not to intend they existed.

The judge, in the case before us, is required by the act to have no interest in the road; and it is also required that the commissioners shall not be inhabitants of any of the towns through which the road shall pass. Neither of these points, which are essential to an impartial result, appear to have been complied with, and both are indispensable.

A notice to the owners, it is true, is alleged to have been given, but it is not stated to have been in writing. A notice, in legal proceedings, means a written notice, and we think the act itself, in this instance, contemplates such a notice. In certain cases, it directs the notice to be left at the dwelling house of the party. This must intend a written notice.

On these grounds without determining the other objections, we are clearly of opinion that the inquisition ought to be set aside.

deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon." See People v. Williams, 36 N. Y. 441 (1867).

HARBAUGH et al. v. MARTIN.

(Supreme Court of Michigan, 1874. 30 Mich. 234.)

COOLEY, J.10 Certiorari is sued out in this case to reverse the proceedings of the drain commissioner in assessing upon the plaintiffs in error and others the expense of deepening and widening the Prairie Ronde ditch, in the township of Springwells. The proceedings purport to have been had under chapter 47, p. 570, of the Compiled Laws of 1871, the fourth section of which requires the county drain commissioner, upon the application to him in writing of ten or more owners of land in each township in or through which they ask to have a drain constructed, to institute proceedings for that purpose, with a proviso, however, that "the petition, except when the same is asked for upon sanitary reasons only, shall be signed by a majority of the resident owners of the lands through or into which said drain is proposed to be constructed." The petition in this case did not ask action upon sanitary reasons. It was signed by twenty-one persons, who style themselves "citizens and freeholders of Springwells"; but there is no finding in the case, nor even any recital in any of the papers which make up the record of the proceedings, that these twenty-one persons constitute a majority of the resident owners of the lands through or into which the drain was constructed. A subsequent paper presented to the commissioner as a waiver of a jury to assess damages, etc., is signed by nearly all the same persons, with some others, who are therein recited to be "a majority of the resident owners of the property affected by the said drain"; but this cannot aid the petition, for other property is usually affected by a drain besides that into or through which it extends.

It is said, however, that the commissioner in these cases may act upon his own knowledge of the facts. If that be admissible, which we do not decide, the record must in some manner show that he possessed the requisite knowledge to justify his action. The record cannot be aided by knowledge which the commissioner conceals in his own breast; it must be complete in itself, and all jurisdictional facts must appear on the face of it. In this case nothing appears to show that the petition was sufficiently signed until the commissioner makes return to this court. But assertions in that cannot cure defects in his record. People v. Highway Commissioners, 14 Mich. 528. *

The proceedings must be quashed.11

10 Only a portion of the opinion is printed.

11 See, also, McGregor v. Supervisors, 37 Mich. 388.

"In a proceeding to establish or vacate highways in this state the statutes have uniformly required that the petitions should be signed by twelve freeholders of the county, six of whom shall reside in the immediate neighborhood of the highway proposed to be located or vacated (section 7649, Burns' Ann. St. 1908); but it has been held that it was not necessary to the sufficiency of the petition that said facts be alleged therein [citing authorities]. Any

MEEKER v. VAN RENSSELAER.

(Supreme Court of Judicature of New York, 1836. 15 Wend. 397.)

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The declaration charged the defendant with pulling down five dwelling houses. The defendant proved that the board of health of the city had directed the nuisance to be abated. To this proof the plaintiff objected, insisting that the minutes of the board or written. evidence of their orders should be produced. The objection was overruled, and parol evidence was received. * *

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SAVAGE, C. J.12 * It was objected that parol evidence. should not have been received of the orders of the board of health. This objection was well taken. The board of health is a tribunal created by statute, clothed with large discretionary powers; and, being a public body, its acts should be proved by the highest and best evidences which the nature of the case admits of. Every proceeding of a judicial character must be in writing. It is not to be presumed that minutes of their proceedings are not kept by such a body, and that determinations which seriously affect the property of individuals, were not reduced to writing, but rest in parol. In the case of Van Wormer v. City of Albany, 15 Wend. 262, the minutes of the proceedings of the board were incorporated with the proceedings of the corporation, of which the board of health were members, and were proved by a witness a member of both boards. *

WHITELY v. PLATTE COUNTY.

(Supreme Court of Missouri, 1880. 73 Mo. 30.)

NORTON, J. The controversy in this case grows out of the action of the township board of directors of Weston township, Platte county, in locating a new road over the land of plaintiff in said township. Plaintiff appealed from the action of said board to the county court of said county, in which court he filed his motion to set aside the order establishing said road, because it was made without notice to plaintiff, and because the said board had no jurisdiction to make it. The court overruled the motion, whereupon the plaintiff appealed to the circuit court, and renewed his motion to set aside said order because the township board had acquired no jurisdiction to establish said road, and because the order establishing it was made without notice. to him. This motion being overruled, plaintiff appeals to this court. The only question which the record presents is whether or not the township board in the various steps taken had acquired jurisdiction. This being a statutory proceeding in invitum to appropriate to the use

thing in Conaway v. Ascherman, 94 Ind. 187, 190, to the contrary is overruled." Etna Life Ins. Co. v. Jones (Ind.) 89 N. E. 871 (1909).

12 Only a portion of this case is printed.

of the public the land of plaintiff, and being in derogation of common law and common right, "the utmost strictness is required in order to give it validity; and unless upon the face of the proceeding it affirmatively appear that every essential prerequisite of the statute conferring the authority has been fully complied with, every step, from inception to termination, is coram non judice." Ells v. Pacific R. R., 51 Mo. 200. The township board could only acquire jurisdiction to lay out a new road and assess damages as is provided in sections 24, 25 and 27, p. 110, of the act of 1873, that being the act under which the proceeding was had. These sections are as follows:

24. "The township board of directors may lay out or discontinue or alter any road, or lay out any new road, when petitioned for by any number of legal voters, who shall be householders of said township, not less than twelve, residing within three miles of the road so to be altered, discontinued or laid out; said petition shall set forth in writing a description of the road and what part is to be altered or discontinued; and if for a new road, the names of owners of land, if known, over which the road is to pass, the point at which it is to commence, its general course, and the place at or near which it is to terminate."

25. "Whenever any number of legal voters determine to petition the township board for the alteration or discontinuance of any road, or laying out a new road, they shall cause a copy of their petition to be posted up in three of the most public places in the township, at least twenty days before any action shall be had in reference to said petition."

27. "The damages sustained in consequence of the laying out, opening or altering a road, when the parties interested therein cannot agree, shall be ascertained and assessed by the township board."

It is clear from these statutory provisions that it is an indispensable prerequisite to laying out a new road that the petition for the same must be made by twelve legal voters and householders of the township living within three miles of the proposed road, and that a copy of such petition must be posted in three of the most public places in the township at least twenty days before any action can be taken in reference to it. These facts are jurisdictional and must affirmatively appear in the proceedings, and unless they do so appear no jurisdiction is conferred, and none can be exercised. The object of requiring a copy of the petition to be posted up was to impart notice to the landowner that the public proposed to make an appropriation of his property to a public use, and completely deprive and divest him of all control over the same; and in order that such notice might be effectual, it is not only provided that such copy shall be posted up in three places in the township where the road is proposed to be established, but that these places must be three of the most public places in the township. The record before us entirely fails to show a compliance with the law in these respects, it only appearing there from "that it was proved to the satisfaction of the board that notice of the opening of said road had

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