State v. Parker

• Decision Date: 17 January 1891
• Citation: 53 N.J.L. 183,20 A. 1074
• Parties: STATE (STOKES, Prosecutor) v. PARKER et al.
• Court: New Jersey Supreme Court

20 A. 1074

53 N.J.L. 183

STATE (STOKES, Prosecutor)

v. PARKER et al.

Supreme Court of New Jersey.

Jan. 17, 1891.

Certiorari to court of common pleas, Monmouth county; CONOVER, BENNETT, and CURTIS, Judges.

The writ in this case issued to the court of common pleas of the county of Monmouth to bring up for review a matter of road wherein, on the return of four surveyors laying out the road, there was an omission to assess damages to the owners for lands taken in the laying of the road, and the assessment of damages to others whose lands were not taken. On proper proceedings had in the court of common pleas, three surveyors, being the only survivors of those who laid the road, were appointed by the court to correct the return in these particulars, and, by their amended return, corrections were made, and an order of the court followed directing the amended return to be recorded. The general road law of 1846, (Revision N. J. p. 990, § 1,) provides for the appointment of six surveyors to lay out a public road, and section 12 declares that a majority of them shall be a quorum. Section 13 provides that "the surveyors, or a majority of them," shall make the assessments of damages done to any property by reason of the laying out and construction of the road.

Argued before KNAPP and DIXON, JJ.

James Steen, for prosecutor. W. 1. Chamberlain, for respondent.

KNAPP, J., (after stating the facts as above.) A single legal question is presented by this review. The road was originally laid out by four surveyors of the highways. Two of the six appointed by the court did not attend, although the statutory notice was given to them. The surveyors omitted in their return to assess and award damages to the owners of certain lands taken for the road. This error being clearly amendable under the provisions of the road law, proper proceedings were instituted before the Monmouth pleas to amend the return. One of the surveyors of the highways who signed the original return had died. The three survivors were appointed by the court, and made a corrected return altering the original so far only as the defects specified in the application to the court required change for their correction. The question raised is whether the three surveyors so appointed had jurisdiction to correct by amendment the original return. The proceeding is entirely statutory, and the answer, therefore, to the inquiry, must be found upon inspection of the statute regulating this subject. That act is the supplement of March 12, 1874, to the act concerning roads. Revision, p. 1018, par. 124. In this act provision is made for amending "defective or erroneous" returns. It is enacted in that statute that "the court, on motion of the applicants for the road, or any of them, shall make an order specifying the particulars wherein said return is defective or erroneous, and requiring the surveyors who signed said return, and who are still living and residents of the county or counties in which the road is located, to meet, at a time and place to be designated in the order, to make an amended return," and, when so met, "they, or a majority of them," are directed to "make, date, and sign an amended return, correcting the errors and defects in their former return." It is further provided that expiration in office of any who signed the...