The People on the relation of Babcock and others against The Commissioners of Highways of Cherry Valley, 8 N.Y. 476

Willard, J. The only question I shall discuss in this case, is whether the referees made such a decision as required the commissioners of highways of Cherry Valley, to lay out and oyen the road in question; as required by the judgment awarding the peremptory mandamus. To determine this question it is necessary to understand the legislative requirements on this subject prior to the act of 1847. Under the revised statutes, (1 R.

S. 518, § 84,) any person conceiving himself aggrieved by any determination the commissioners of highways, either in laying out, altering or discontinuing, or in refusing to lay out, alter or discontinue any road, might within sixty days thereafter appeal to any three of the judges of the court of common pleas of the county in which the road was situated. As the present appeal was from a determination of the commissioners, refusing to lay out the road, no more of the statute will be recited than relates to that contingency.

The statute points out the mode of conducting the appeal before the judges, the notices to be given, and the duty of the judges to convene and hear the proofs and allegations of the parties, and it then proceeds in the 19th section, (1 R. S. 519,) and enacts that where an appeal shall have been made from a determination of commissioners refusing to lay out a road, and. the judges shall reverse such determination. “ such judges shall lay out the road applied for: and in doing-so, shall proceed in the same manner in which commissioners of highways are directed to proceed in like cases.

Such road shall be opened by the commissioners of the town, in the same manner as if laid out by themselves.” Under this provision, the mere reversal of the determination of the commissioners refusing to lay out a road, left the matter exactly as it was before the road was applied for, and did not require or even authorize the commissioners to open the road. The relators insist, that the law in this respect has been changed, and that on a mere reversal in such case, the commissioners are bound to lay out the road.

A brief reference to the acts of 1845 and 1847 will show they are mistaken in that construction of the act. The principal object of the law of 1845, (Laws of 1845, p. 183,) was to reduce the expenses of towns and counties. With this view the 9th

section allowed an appeal from the determination of commissioners of highways in refusing to lay out, alter or discontinue any road, to be taken in the first instance to the first judge of the county courts, and when he was disqualified or the office was vacant, to any other county judge" of the county. This appeal was to be brought and conducted in all respects as appeals were brought and conducted under the revised statutes. By the 10th

section it was provided that any party considering himself aggrieved by any decision upon such appeal, might at any time within forty days thereafter, file a notice in the office of the clerk of the town where the commissioners resided, signifying his intention to appeal to two other judges of the said county, to be associated with the person who made this decision on the first appeal. After pointing out the mode of conducting the appeal, the 13th

section enacts that whenever there shall have been any final determination upon any appeal or appeals provided for as aforesaid, making it necessary that any road or highway shall he laid out, altered, opened or discontinued, it shall be the duty of the commissioners to carry out such determination, the same as if the decision of such commissioners had been in favor thereof, and there had been no appeal. The decision of the judges was by the 12th

section required to be in writing, and filed in the town clerk’s office of the town. It is quite plain that a decision of the judges merely reversing the order of the commissioners refusing to lay out a road, does not make it necessary that the road shall be laid out as applied for to the commissioners. If the judges intended the road should be laid out, they should not only reverse the order refusing to lay it out, but direct it to be laid out and opened by the commissioners.

The act of 1845, like many other reforming statutes, neither diminished expense, or facilitated business, and it was doomed to a transitory existence. The adoption of the constitution of 1846, abolishing the court of common pleas, rendered a revision of so much of the highway laws as relate to appeals expedient. This was done ■ by the act of December 14, 1847. (Laws of 1847, p. 580.) The eighth

section of this act is apparently framed from the 84th

section of the 1 R. S. 518, and merely substitutes the county judge for. the three judges of the court of common pleas of the county, as the person to whom the appeal shall be addressed. It requires the county judge on receiving the appeal to appoint three disinterested freeholders of the county, but belonging to another town, to hear and determine such appeal. Upon receiving notice of their appointment, the referees possess all the powers and are required to discharge all the duties heretofore possessed and discharged by the three judges. The reference here is undoubtedly to the power of the three judges under the revised statutes. The 9th

section enacts that whenever the referees shall make any decision laying' out, altering or discontinuing any road in whole or in part, it shall be the duty of the commissioners of highways of the town to carry out such decision in the same manner as required in cases of final determinations of appeals, as provided by the thirteenth

section of the act of 1845, and such decision shall remain unaltered for the term of four years from the time the same shall have been filed in the office of the town clerk. This

section applies to every case whether the referees differ wholly, or only in part, from the commissioners. Formerly the judges in appeal could only affirm or reverse in toto. (Com. of Highways v. The Judges of Chenango, 25 Wendell, 453.) The 9th

section was intended to extend the power of the referees on appeal to a partial reversal or modification of the order of the commissioners. In the present cáse' there was a total reversal of the order of the commissioners. But the determination of the referees was incomplete, if they intended the road should be laid out according to the prayer of the petitioners. . Whether their duty is to be measured by that of the judges of the common pleas under the revised statutes, or under the 13 th

section of .the act of 1845, they were required, on reversing the decision of the commissioners.in refusing to lay out a road, to lay out the road as prayed for in the petition, or if they reversed only in part, to describe by courses and distances the road which they direct the commissioners to lay out and open.

Their decision is to be made in writing, and filed in .the town cleric’s office, whether they lay out the road in whole or in part, as prayed for. (Laws of 1847, p. 584, § 9.) It was probably the duty of the referees in reversing in whole the determination of the commissioners in refusing to lay out the road, to make such order as the commissioners should in their judgment, have made: that is, in this case, an order to lay out the road according to the prayer of the petitioner. In omitting to make such order, and merely reversing the order of refusal, their determination was incomplete.

The commissioners of highways were not bound to lay out the road, upon the mere reversal of their order of refusal. There are several other questions in this case, but it is unnecessary to consider them, as this is decisive of the action; The judgment of the supreme court should be reversed, •with costs of this court and of the court below.

Taggart, J., read an opinion in which he arrived at the same conclusions with Judge Willard in relation to the duties of referees upon the reversal or modification of the acts of the commissioners, and that the commissioners were not bound to proceed to lay out the highway upon a simple reversal of their former determination. Judgment reversed.