The Town of Huntington against Birch and others, 12 Conn. 142

Huntington, I. Two causes of error have been assigned and argued before us by counsel: 1. That it does not appear from the record, that the oath prescribed by law, was taken by the committee, before they entered on the duties of their appointment. 2. That the county court should have received the evidence offered in support of the remonstrance. 1. It is admitted, that the statute requires an oath to be taken, by the committee, before they proceed to execute the duties imposed upon them. The form of the oath is prescribed in the act, tit. 48. a. 12. p. 69.

Upon examining the record, we find it stated, by the committee, in their report, immediately following a recital of the petition and of the proceedings of the county court making the appointment, &c., “ that having taken the oath, and given the notice by law required, as above specified, we met,” <fcc. Iu view of this distinct and unequivocal averment, it would seem difficult to maintain the objection, that. it does not appear the oath prescribed by law was taken.

It is, however, insisted, that by the existing laws of this state, two oaths are to betaken, before the committee can legally act, viz. the one to which we have referred, and the one found in tit. 72. s. 20. p. 367 : And as it is to be fairly inferred, that but a single oath was administered, the requirements of the statutes have not been observed. It is further claimed, that if one only is necessary, yet as two are prescribed, it should appear which was administered, that it may be seen that the one having the direct application to the duties to be performed, was in fact taken.

We are of opinion, that this objection to the proceedings cannot be sustained, in either of the points of view in which it has been presented. The statute which regulates the whole subject of highways, has not, in general terms merely, provided that an oath shall be taken, but it has recited the form of such oath.

It declares, that the committee appointed to enquire into the convenience and necessity of a highway prayed to be laid out or altered, before they enter on the duties of their appointment, shall take the following oath, to wit: “ You swear, that you will truly and faithfully, and according to your best skill and judgment, perform the duties and services assigned you in your commission.” As this oath is sufficiently comprehensive to embrace every portion of the duties to be discharged, and is inserted in the act which creates the powers of the committee and points out their duties, and is the only one to which there is the remotest reference, we arc furnished with a veiy strong expression of the opinion of the legislature, that no other oath is to be taken.

If it had been intended to superadd the sanction of another oath, it is difficult to perceive why this alone was embodied in the act; or why that should have been left to mere inference, which could so easily have been stated directly; or why the legality of the proceedings, on a subject of so general concern, as that of laying out and altering highways, should be made to depend upon mere conjecture, or judicial construction. We are satisfied, that this statute is not justly chargeable with the equivocal character ascribed to it.

It was designed to embrace an entire system of regulations, relating to the subject of highways, one of which should prescribe the form of the solemn sanction under which the agents authorized to carry a part of that system into effect, were to act. And accordingly, we find such a provision made, such a sanction imposed, and the form of it recited at length. The legislature have not required, and courts cannot require, any other.

These remarks furnish an answer to the claim, that the statute prescribing the forms of certain oaths, (which is unrepeal-ed,) contains the form of an oath “ for a committee to lay out or alter highways,” &c.; and being still in force, is to be observed. We believe this

section was retained, in the rewsion of 1821, by mistake ; it having escaped the attention of the re-visors, that the duties of the committee had been essentially varied from what they were at the time the

section was first enacted ; and thus, that the oath there prescribed, had become both unnecessary and inapplicable. If, however, it were otherwise, we cannot doubt it is superseded, by the express provisions of the act relating to highways, which professes to give the only form of oath deemed requisite and proper by the legislature.

Again; by reference to the oath prescribed in the general statute relating to oaths, it will be perceived to be substantially the same, as that enacted in 1731, (ed. of 1808. s. 30. note 27.), and is predicated on the then existing law as to the duties of the jury or committee, who were to lay out or alter the highway. They are, “according to their best skill and judgment, and according to the precept by which they are summoned, to lay out the way therein mentioned,” &c.

This form was peculiarly appropriate, when no other duties were imposed upon them, than to lay out and assess damages ; and such only were their duties, for a long period. The court was vested with the power of determining whether common convenience and necessity required that the road should be laid out or altered. The jury or committee were to lay out or alter, after the adjudication of the court; and a “ precept” or commission was given to them to that effect.

Hence, the entire fitness of the expression in the oath, “ You swear you will, according to the precept by which you are now summoned, lay out the way therein mentioned,” &c. Such language would be inappropriate and altogether out of place, in an oath relating to the present duties of a committee. They are appointed, not abso-lately to lay out or alter a road, and assess damages. No precept or commission is now given them, which requires that. they shall do these acts.

They have a discretionary power confided to them. “ They shall proceed to survey and lay out the highway, or alteration therein, if they shall be of opinion it will be of common convenience and necessity,” and not otherwise.

It became proper, upon a change of their duties, to make a corresponding change in the oath to be administered to them ; and the legislature, accordingly, varied the phraseology of the oath, and instead of the words used in the ancient statute, substituted the concise and comprehensive form which is now in use, and which requires of the committee, “ the faithful performance of the duties of their appointment.” It seems to us, this view of the question we are now considering, is entirely conclusive. This opinion has the sanction, (as we believe) of an uniform and long established practice.

We cannot learn that it has ever been the usage, since the form of oath prescribed in the statute relating to highways, was enacted, to administer any other. On the contrary, so far as we are informed, parties and counsel, the profession and the public in general, have entertained the opinion, and acted in accordance with it, that when this oath is administered, the committee are legally qualified to enter on the duties of their appointment.

We, certainly, feel no disposition to alter this practice ; more especially, as it is opposed to no adjudged case, is conformable to principle, and has been long acquiesced in. We apply to it, what, under like circumstances, we have applied to other cases, — although practice cannot controul the law, yet where it has been long continued, uniform and unquestionable, it affords high evidence of what the law is, and it would require very cogent reasons, at this day, to change it. Hawley v. Parrott, 10 Conn. Rep. 486. Whittlesey v. Fuller, 11 Conn. Rep. 337. Camp v. Bates, Id. 487.

We may remark in addition, that as the committee state, that they “ took the oath required by law,” we have a right, and perhaps, are bound, to presume, in the absence of any finding of facts to the contrary, that they were legally qualified to act. In the case of Hasted v. Greenwich, 11 Conn. Rep. 383., we said, even if the committee had not annexed to their certificate, that they were under oath, we are by no means satisfied that the law would not now imply that they were.

Sheriffs, constables, and justices of the peace, in their returns of acts done by them in their official capacities, never state that they were under oath, when they performed these acts. And courts of justice are in the constant practice of receiving and acting upon such returns, as if they were accompanied with evidence that the persons signing them had been sworn. We perceive no sufficient reason for changing the opinion there expressed ; but on further reflection, our confidence in its correctness is confirmed.

If, therefore, the law requires both oaths to be taken, we may reasonably infer, there being no proof to the contrary, that they were taken ; and if so, the whole foundation of the present objection is removed. 2. Ought the county court to have received the evidence offered in support of the remonstrance ? It was rejected, by that court, on the ground that it contradicted their previous finding appearing on the record ; and we think it was properly rejected. By the 12th

section of the statute relating to highways, (p. 269.,) it is provided, that before the appointment of a committee to lay out or alter a highway, is made, notice is to be given (in the manner specified) to the town or towns to be affected by it; and without such notice is given, and without their previous neglect or refusal to act, the court cannot entertain jurisdiction of the subject. We have heretofore decided, in several cases, that the fact that there was such neglect or refusal, is to be found by the court; otherwise their proceedings are erroneous. Waterbury v. Darien, 8 Conn. Rep. 162. Treat v.

Middletown, Id. 243. Plainfield v. Packer 6c al. 11 Conn. Rep. 574. The grounds upon which these decisions rest, apply equally to the fact of notice. That also is to be found by the court; for their jurisdiction over highways being special and limited, and not arising from their general common law powers, all the facts necessary to give them jurisdiction, must appear to exist, and their finding is the evidence of it.

It clearly, then, was the duty of the court, before they proceeded to appoint a committee, to find that notice had been given relating to the highway sought to be laid out or altered ; and on an inspection of their record, it appears that, after reciting the petition containing a description of the highway, which the remonstrance avers, was not in the petition when the same was served, and of which they had no legal notice at any time before the appointment of the committee, and also containing the word “ highways” in the plural number, the court find, “ that,. said petition was legally served on the select-men of said towns of Huntington and Monroe : and that said select-men of said towns, have ever neglected and refused to make said alterations in said highivays, although requested so to do,” &c.; and thereupon they proceed to appoint a committee, in pursuance of the provisions of the statute.

It is, therefore, apparent, that the court have found, distinctly, that the notice, which the remonstrance negates, was given, and it is now a part of their record. It cannot be necessary to cite authorities to prove, that this record of a court of competent jurisdiction, cannot be collaterally impeached or contradicted — much less to show, that a fact which is found, necessary to give them jurisdiction, and made part of their proceedings, can be collaterally denied and putin issue. And yet, it would seem, that the exception now taken, is opposed to the principles which the whole current of authority establishes.

The offer, on the part of the plaintiffs in error, was, to prove, by parol, that the notice found and appearing of record, was not in fact given, thus forming an issue on the verity of the record : and the same court which had made the finding and recorded it, at one of its stated terms, and thereby obtained jurisdiction of the cause, was asked, at a subsequent term, to allow it to be put in issue, and by the admission of parol proof, to falsify its own record.

It was, however, admitted, that a fact found by a court having jurisdiction, if it be such a fact as the court is competent to find, cannot be contradicted, and the finding is conclusive ; but it was claimed, that the fact offered to be proved, in the case before ús, was one, the existence of which was essential to the jurisdiction of the court, and being denied, the court were not competent to find it.

The fact put in issue, by the remonstrance, was, whether the original petition served on the town embraced the highway “leading from Derby bridge, passing near Huntington town-house, to the public green in Monroe/’ and if not, whether the subsequent insertion of it, was made without the knowledge or consent of the court, or the town. If the petition did not include this highway, it was said, the court could not appoint a committee to examine and alter it; and they could not hold jurisdiction, by finding the fact that it was included, because it must first exist, to give them jurisdiction to act at all.

We cannot yield our aggent i0 the doctrine, which this argument advances. It denies to a court, the power to enquire whether it has jurisdiction. It assumes that no court can institute an enquiry into facts on which their jurisdiction depends ; or, in plainer language, though not more certainly, it asserts, that a court cannot exercise jurisdiction, if it be denied. That this is the result to which the argument pressed upon us, will ultimately arrive, is, we think, quite obvious. Indeed, such is the result, in its application to the case before us.

To enable the county court to hold jurisdiction, it was necessary they should find notice to have been given relating to the highway which the committee were to examine ; and yet, it is claimed, they had no power to enquire into that fact, because until it was ascertained or admitted, they had no jurisdiction for any purpose. If, therefore, the defendants in that court, had denied notice, all further proceedings would have been stopped. This would, certainly, be a very easy and effectual mode of disposing of petitions for laying out or altering highways.

They are not always favourably received, by the towns, who are to incur the expense of making the highways ; and if they can be defeated, simply by a denial of notice, the interposition of the legislature would become indispensable. No necessity, however, exists for any amendment or alteration of the law on the subject under consideration. It is always competent for a court to institute enquiries into matters of fact on which their jurisdiction depends. It is every day’s practice, and is a power essential to the due administration of justice, and the maintenance of public and private rights.

There is no”substantial distinction, in respect to this power, between a process against a town, and one against an individual; and if it be competent, in the latter case, to enquire whether the defendant had legal notice, it would seem tobe equally competent, where a municipal corporation is a party. If the principle advanced by the plaintiffs in error, be correct, the remonstrance ought, certainly, to have been held insufficient: for if the court could not take jurisdiction, by once finding notice, they could not obtain it, by finding it a second or a third time.

It would have been as ineffectual in law to give them jurisdiction, had they found the issue as to notice, in favour of the petitioners, or the remonstrants, as it was to have found it in the first instance, without any formal issue : — for. according to the argument we are considering, all enquiry into the matter of notice, is precluded, when the notice is not admitted, or is denied, because such, denial ousts the court of jurisdiction to institute any enquiry.

The remonstrants insisted, that the court should hear the evidence which they proposed to offer, on the disputed point of notice; and surely, if they were not authorized to hear it, in a previous stage of the proceedings, because it would be an assumption of jurisdiction, they could acquire no such authority, merely by reason of its being offered under an issue formed on a traverse of the remonstrance. It seems to us, that if the argument of the plaintiffs be tenable, every act done in pursuance of the order and decree of the court, was a legal wrong, which may be redressed by suit.

The entry on the land to view, survey and lay out, was a trespass; and all the proceedings extra-judicial and void. We do not give our sanction to a principle involving such consequences. We were referred to the case of Bigelow v. Stearns, 19 Johns. Rep. 39., as sustaining the position for which the plaintiff in error contends. We have examined it, and have not been able to discern that it supports the position for which it has been cited.

It states the familiar principle, that if a court of limited jurisdiction issues a process, which is illegal, and not merely erroneous ; or if a court, whether of limited jurisdiction or not, undertakes to hold cognizance of a cause, without having gained jurisdiction of the person, by having him before it, in the maimer required by law, the proceedings are void. But we do not find in it any intimation, that a court cannot enquire into facts necessary to give it jurisdiction.

In that case, the court were of opinion, that the statute required the defendant, (who had acted as justice of the peace,) before lie could commit, to cause the offender to be brought before him. His personal presence was indispensable to give the justice jurisdiction. The record did not shew, that the plaintiff was present, but merely that the process had been served upon him, by reading. There was no finding that he was present; and evidence was offered to prove, that the defendant did not cause the plaintiff to appear before him, before he recorded the conviction and issued his warrant of commitment.

This was objected to, on the ground that, as the defendant had jurisdiction of the subject matter, the record of conviction was a justification, and could not be impeached. To this objection, the court reply, that jurisdiction of the person is as necessary as jurisdiction of the subject matter; and that whenever a statute confers a new power upon justices of the peace, they must proceed in the mode prescribed by the statute.

Had the defendant found the fact that the plaintiff was present, at the time of the conviction ; and that finding had become a part of the record; it cannot be doubted the court would have held it to be a complete justification. It was, however, asked, is the party who has sustained injury, by reason of the facts set up in the remonstrance, without remedy ? Is the town to be subjected to the expense of making and keeping in repair the road in question, when it had no notice in fact, that an application for such road had been presented ?

And are material amendments of a petition to be made, without the knowledge of the court and of the adverse party, and to be held conclusive, and the record which contains them, to import absolute verity, so that the injured party is remediless ? We answer, certainly not.

If the alterations in the petition were made, by mistake, or in any other manner, without the approbation of the court, or the party affected by them, and he has been guilty of no laches, and has suffered loss in consequence, the law has provided an ample remedy, without annihilating the great principles by which the verity of judicial records is sustained.

He may apply to the court, where the proceedings complained of were had, after final judgment, for a new trial of the cause ; — and although it is in their discretion to grant or refuse it, it is to be presumed it will be exercised in such a manner as will promote the ends of justice. It is a legal discretion; and in a proper case, upon proper and sufficient proof, the petition will be granted as matter of right. The judgment of the superior court is affirmed. In this opinion the other Judges concurred. Judgment affirmed.