People Ex Rel. Ottman v. Hynds , 30 N.Y. 470 ( 1864 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The judgment should be affirmed.

I. There was not a certificate of twelve freeholders. Dunkle was not a freeholder. He had not the legal title to the farm. That was either in Hutton or Wieting. Dunkle could not convey. He had an equitable title which might perhaps be converted into a legal title. The statute, by freeholders, means such as have the legal title to real estate — such as are freeholders without a proceeding in court to make or declare them so.

II. If there was not a certificate of twelve freeholders, the subsequent proceedings would be entirely void. At all events the commissioners were not bound to proceed. (Exparte Clapper, 3 Hill, 458; People v. Commissioners of Seward, 27 Barb. 96;People v. Eggleston, 13 How. 123; People v. Supervisors ofGreene, 12 Barb. 217.)

III. The notice of the hearing before the commissioners was a notice of the hearing before two commissioners alone. Such was the notice, and there is no proof to contradict it. More than those two would have been incompetent to act, and the intervention of the third commissioner would have been withoutauthority, and would have made the proceedings void. This is the fair construction of the order. There can be no properpresumption against this.

IV. The order itself is void, as made by two commissioners, without the intervention of a third, or notice to him recited in the order. (1 R.S. 525.)

1. The statute (1 R.S. 525), was intended to make an absolute and universal rule for cases of this kind, and to prevent any presumptions whatever. See notes of revisers, 3 R.S. (2d ed.) 520, citing 9 Johns. 360, and laws of 1826, page 229, section 9, and intending to express the result of that decision and that statute. (Stewart v. Wallis, 30 Barb. 344; Fitch v. Commissioners of Kirkland, 22 Wend. 135; Contra, Tucker v.Rankin, 15 Barb. 471.)

2. The general statute authorizing a majority of public officers to act under certain circumstances, is limited to cases where no special provision is otherwise made. (2 R.S. 5th ed. 869, § 29, 555.)

3. The order must be sufficient on its face. Its defects cannot be helped out, or supplied by parol. (Fitch v. Commissionersof Kirkland, 22 Wend. 135; Broom's Legal Maxims, 27, c.; Smith on Statutes, 654, 655.)

The question is, whether the commissioners who were called upon to lay out the road, being presented with an order made by former commissioners, defective and insufficient on its face, werebound to proceed and consummate the proceedings. I apprehend they were not required — even if they were permitted — to search for parol evidence to fortify a defective order, and to show thatin fact all the commissioners met and deliberated on the application to lay out the road, or were notified to do so. The office would be a thankless one if a mandamus could be issued against them in effect requiring the performance of such a service. They had a right to judge of the order by its contents.

V. Even if the order alluded to was not incurably defective, the omission to produce a certificate of twelve freeholders isfatal, and makes the whole proceedings void.

The judgment should be affirmed.

All the judges concurred, on the ground that the order did not show that all the commissioners met. Upon the other points they (except WRIGHT, J., who was for affirmance generally), were in doubt, and did not agree with HOGEBOOM, J. Judgment affirmed.