January Term, 1864
Miller and Tuthill, for the appellants.
W.P. Buffett, for the respondents.
The proceedings to remove encroachments upon a highway in the counties of Suffolk, Queens and Kings, under the act of 23d February, 1830, applying to those counties exclusively, are identical with the proceedings for the same purpose in other parts of the state, under the revised statutes, except that in the first named act only six jurors out of the twelve summoned are drawn to serve as the jury and try the question.
The object which the relator sought to accomplish by the writ of certiorari, and proceedings under it, was to procure a reversal of the order of the commissioners of highways, ordering the removal of the relator's fences, as an encroachment, and the subsequent proceedings under that order. In order to do this, it was necessary that that order should have been brought up and made part of the record. That order lay at the foundation of all the proceedings, and unless brought up by the return, the entire end and aim of the certiorari must necessarily fail. Of course this order could not be brought up on a certiorari directed to the jury. They had no custody of it. It did not belong to them or remain with them, and they could make no return of it. It is quite apparent that the jury is not the body to which a certiorari should be directed in such a case. They merely come to try a disputed question of fact between the commissioners and the occupant of the land, upon evidence produced before them by either party litigant, and certify their finding. The certificate is to be filed in the town clerk's office, and that is an end of their power and authority in the matter. No part of the record belongs to them, or remains with them, and they can return nothing other than what has been returned here, a mere narrative of the proceedings before them. This is no record, in any legal sense, of the proceedings by which the relator's fence was determined to be an encroachment. A certiorari does not lie to an inferior tribunal except to remove proceedings which remain before it. ( The People v. Supervisors of Queens, 1 Hill, 195.) The writ in question did not properly bring up this certificate of the finding of the jury, even. They were no longer a legal body, after their verdict or finding was signed, and they had separated, but mere individuals. All their official functions had ceased entirely. And a return signed by one of their number, several months afterwards, was no return of the jury as a body or tribunal. In such a proceeding there is no such officer as foreman, authorized to represent the panel of jurors, and act for them. Where the writ of certiorari is improperly directed, or returned, nothing can be removed by it. ( Bac. Ab. Certiorari, I. Peck v. Foot, 4 How. Prac. Rep. 425.) The writ having been erroneously directed, and the return a nullity, as most obviously it is, the supreme court acquired no jurisdiction over the subject matter. There was nothing before it to reverse or affirm. The defendants seem to have appeared and defended their proceedings as commissioners, though the writ was not directed to them, nor were they required by it to appear or answer. It is difficult to see how they could become parties. But no question of this kind seems to have been raised, on either side, and the proceedings were affirmed in favor of the defendants. The relator has evidently mistaken wholly the office of this writ, which is merely to bring up the record of the proceedings, to enable the supreme court to determine whether the inferior tribunal has proceeded within its jurisdiction, and not to correct mere errors in the course of the proceeding. Here the object seems to have been to bring into review the alleged erroneous rulings of the jury in receiving or rejecting evidence offered on the hearing before them, as though it were a bill of exceptions. Such questions do not arise and can not be reviewed on certiorari. ( Birdsall v. Phillips, 17 Wendell, 464.) It is evident enough that both the defendants and the jury had jurisdiction in the matter before them. But the proceedings not being before the supreme court, there was nothing for them to affirm. Their judgment should have been a dismissal of the writ, or that the relator take nothing by it.
The judgment of the supreme court must, therefore, be reversed, and the case remitted to that court, with directions to dismiss the proceedings, but without costs to either party.
All the judges concurring, judgment accordingly.