People ex rel. Goldsmith v. Highway Commissioners of Nankin

• Decision Date: 23 October 1866
• Court: Michigan Supreme Court
• Parties: The People, ex rel. George R. Goldsmith, v. The Highway Commissioners of Nankin

14 Mich. 528

The People, ex rel. George R. Goldsmith, v. The Highway Commissioners of Nankin

Supreme Court of Michigan

October 23, 1866

Heard October 18, 1866 [Syllabus Material]

Certiorari to the commissioners of highways of Nankin, Wayne county.

This was a writ of certiorari to review the proceedings of the highway commissioners of Nankin, in discontinuing a portion of a road.

Order of the commissioners, quashed.

H. M Cheever, for relator:

The proceedings of the respondents are void, for the following reasons:

1. By the record it appears that no evidence was taken by the commissioners "to ascertain and determine the necessity of discontinuing the highway." They seem to have acted solely upon their own opinions. The return expressly showing that the whole evidence is "returned," no presumption can arise in favor of any other having been received: 2 Doug. Mich., 98; 8 Id. 424; L. of 1861, p. 256 § 3.

2. It does not appear that the commissioners complied with the law regulating their proceedings in any of the following particulars, upon all of which the statute is imperative:

a. "Viewing the premises described in the application and notice."

b. Passing upon the "necessity" of discontinuing the highway.

c. Meeting at the "time and place appointed." They say they met "accordingly," i. e., to what immediately precedes this statement, "to consider and determine upon the question of the discontinuing said road." See act of 1861, sections two and three.

3. The certificate of the service of notice is insufficient, because:

a. It has no revenue stamp attached: Stamp Act, p. 103.

b. It does not show such service as is required by law. The certificate reads as served "upon each of the persons living upon and interested in said road therein described," i. e., described in the notice, not the petition.

The law requires notice to be served "on the owners or occupants of lands through which it is proposed to lay out, alter, or discontinue such road, either personally or by copy left at the residence of said owner or occupant:" Act of 1861, § 2. It does not appear that the owners of lands had notice, nor does the manner of service appear.

4. The "petition" and "notice" differ. The petition refers to a recorded plat, and states the course through such plat to be "southerly a few degrees west," etc. The notice makes no reference to any "plat," but defines the course through the village to be "southwesterly."

5. The road, as described in the order of discontinuance, differs from the one described in the petition. The petition is the source of jurisdiction, and must be adhered to. The "finding" must conform to the "petition." This question has been so fully argued in this court heretofore, that it is unnecessary to dwell upon it: 30 Me. 302; 3 Dutcher 420; 4 Halsted 21; 13 Shep. 406; 12 Mich. 434, and cases there cited.

The constitutional power of the commissioners to lay out a highway was also discussed, but, as the court did not pass upon that question, the argument is omitted.

G. V. N. Lothrop, for respondents:

1. The commissioners acted under act No. 163, Sess. L. 1863, p. 256.

The record discloses that they obtained jurisdiction of the subject matter by a petition signed by the requisite number of freeholders: Laws 1861, p. 356, § 1; 6 Barb. 610. The record also discloses a notice to the persons interested, of a meeting of the commissioners, and due service and posting of the notices. It also shows a meeting of the commissioners, their order of discontinuance, and the amount of damages.

When it appears that in such case the officers obtained jurisdiction in the case, the proceedings will not be reversed or set aside, unless manifest and clear error is disclosed in the subsequent proceedings. Every intendment in favor of regularity will be allowed: 2 Doug. Mich., 98; 4 Cow. 194; 3 Hill 458.

2. The highway commissioners were constitutionally and legally clothed with power to act in the premises.

The amendment of section two, article eighteen, of the constitution, adopted in 1860, removed all constitutional difficulty: Laws 1859, p. 1102.

And act 163, Laws 1861, p. 256, gave them full statutory power.

3. The writ of certiorari is a writ, not of right, but depending on the discretion of this court. Where the party has a full remedy otherwise, the court does not favor resort to this writ; and on this ground may quash this writ at the hearing: 9 Mich. 324; 12 Id. 114; 1 Hill 195, 674.

Now, in this case, all parties had a full, plain, easy and prompt remedy, by appeal to...