Whittingham v. Hopkins

• Decision Date: 29 February 1904
• Citation: 57 A. 402,70 N.J.L. 322
• Parties: WHITTINGHAM et al. v. HOPKINS et al.
• Court: New Jersey Supreme Court

57 A. 402

70 N.J.L. 322

WHITTINGHAM et al.

v. HOPKINS et al.

Court of Errors and Appeals of New Jersey.

Feb. 29, 1904.

(Syllabus by the Court.)

Error to Supreme Court.

Certiorari by the state, on the prosecution of Martha Whittingham and others, against Richard Hopkins and others. From a judgment of affirmance, prosecutors bring error. Reversed.

Chauncey G. Parker, for plaintiffs in error.

Howe & Davis, for defendants in error.

VREEDENBURGH, J. Among the reasons assigned by the plaintiffs in error for the reversal of the judgment of the Supreme Court which affirmed certain proceedings had in the Essex common pleas in the laying out of a public road by surveyors of the highway there are two which we think, should be held sufficient. The first which will be considered relates to the formal making, signing, and delivery of the return. It purports on its face to have been made, dated, and signed by four of the six appointed surveyors on the 25th day of July, A. D. 1902, but it is shown by the date of its filing, on July 8, 1902, as well as by the admission of counsel, that it must have been made and signed on or before the latter date, and that its date is an error. From the undisputed evidence (correcting mistakes of dates of meetings as certified in the return) it sufficiently appears that all of the six surveyors who were originally appointed by the court first met and viewed the road on May 23, 1902, and thence, after several adjournments, met for the last time on June 25, 1902. Two of the four signing surveyors did not sign nor see the return until two or three weeks after the final meeting of June 25, 1902, and then upon separate occasions, at their respective houses, and when apart from each other as well as from the other appointees. Neither of the two latter read the return, nor had its contents read or explained to them, before they signed it, both admitting in their testimony that they only "looked over the heading of it" On what day the two former signed does not appear. The question presented by the above statement of facts is whether they constitute a sufficient execution of the official return of this appointed body under the requirements of our statute.

The laying out of a public road by surveyors of the highways, acting under judicial authority, embracing the consequent taking of private property for public use, and the making to the owners thereof compensation in damages, is an extremely important exercise of governmental power, and it is held by our courts that the directions of the enabling statutes must be strictly pursued. Gen. St p. 2804, § 5, in its provisions bearing immediately upon the matter in hand, commands that the surveyors, when met pursuant to the order of appointment, upon proof being made that the advertisement of their meeting has been set up, shall view the premises, and may, if they shall think it necessary, lay out the said public road, and make return thereof with a map, which return the said surveyors, or a majority of them, "shall date, sign and deliver" to the applicant, who shall deliver it to the clerk of the court of common pleas, etc. This statute clearly contemplates joint action by the appointed surveyors, or a majority of them, in the performance of the duty of dating, signing, and delivering the return. Its express direction is that, when "met," they, as one body, "shall date, sign and deliver" their return to the applicant. That the dating, signing, and delivering of the return is required to be but one joint act, is also apparent from the terms of the next section (6), which declares that the filing of the return must be done (under the severe penalty of the return being a void act) "within fifteen days after the date thereof." Plainly, but a single date is within the statutory purpose, because if each surveyor may, on other dates when so signing, date the return according to the fact, the proper day limited for the filing of the paper would, legally speaking, be unascertainable. That the validity of the return depends upon the joint act of the surveyors upon one and the same occasion is in accord, inferentially at least, with the decisions of the following cases: State v. Schanck, 9 N. J. Law, 135; Matter of Public Road, 4 N. J. Law, 290; Griscom v. Gilmore, 16 N. J. Law, 105; State v. Scott, 9 N. J. Law, 22; Schumm v. Seymour, 24 N. J. Eq. 143; West Jersey Traction Company v. Camden Horse R. Co., 53 N. J. Eq. 103, 35 Atl. 49. See, also, 19 Am. & Eng. Encyl. L. 467.

It is not difficult to find satisfactory reasons of public policy for this construction of the statute. One object of the law, manifestly, was to obtain the benefit of the combined judgment of these public officers while assembled together as a body, having opportunity to interchange opinions with each other in their final action. Signing upon separate occasions by individual officers, in the absence of their associates, and upon the pressure, perhaps, of interested parties, might be fraught with great danger to both public and private interests. Indeed, in the present proceedings, a large part of the depositions taken relate to various temptations of profits and entertainments proved to have been held out by interested parties to two of the signing surveyors.

The other reason referred to reaches to the validity of the return in respect to the variance between the ending point of the road as applied for and ordered to be laid and the same point as fixed in the return. The ending point of the road as proposed reads, in the order of appointment, in the following precise terms, viz.: "Thence easterly on a course deflecting to the left having a radius of 192.74 feet, and to which the last mentioned line is tangent 194.10 feet to an iron spike set at or near the center line of Laurel Street, said last mentioned curve being subtended by a chord bearing north 78 degrees 33 minutes east and having a length of 186 feet The last mentioned spike being distant about 500 feet northwesterly from the northwesterly line of Wyoming Avenue, and being distant southerly 56.65 feet from the westerly corner of a dwelling house...