MEEKER v. VAN RENSSELAER.

(Supreme Court of Judicature of New York, 1836. 15 Wend. 397.) The declaration charged the defendant with pulling down five dwelling houses. * * * The defendant proved that the board of health of the city had directed the nuisance to be abated. To this proof the plaintiff objected, insisting that the minutes of the board or written evidence of their orders should be produced. The objection was overruled, and parol evidence was received.

* * *

SAVAGE, C. J.12*** It was objected that parol evidence should not have been received of the orders of the board of health. This objection was well taken. The board of health is a tribunal created by statute, clothed with large discretionary powers; and, being a public body, its acts should be proved by the highest and best evidences which the nature of the case admits of. Every proceeding of a judicial character must be in writing. It is not to be presumed that minutes of their proceedings are not kept by such a body, and that determinations which seriously affect the property of individuals, were not reduced to writing, but rest in parol. In the case of Van Wormer v. City of Albany, 15 Wend. 262, the minutes of the proceedings of the board were incorporated with the proceedings of the corporation, of which the board of health were members, and were proved by a witness a member of both boards. * * *

WHITELY v. PLATTE COUNTY.

(Supreme Court of Missouri, 1880. 73 Mo. 30.)

NORTON, J. The controversy in this case grows out of the action of the township board of directors of Weston township, Platte county, in locating a new road over the land of plaintiff in said township. Plaintiff appealed from the action of said board to the county court of said county, in which court he filed his motion to set aside the order establishing said road, because it was made without notice to plaintiff, and because the said board had no jurisdiction to make it. The court overruled the motion, whereupon the plaintiff appealed to the circuit court, and renewed his motion to set aside said order because the township board had acquired no jurisdiction to establish said road, and because the order establishing it was made without notice to him. This motion being overruled, plaintiff appeals to this court. The only question which the record presents is whether or not the township board in the various steps taken had acquired jurisdiction. This being a statutory proceeding in invitum to appropriate to the use

thing in Conaway v. Ascherman, 94 Ind. 187, 190, to the contrary is overruled." Etna Life Ins. Co. v. Jones (Ind.) 89 N. E. 871 (1909).

12 Only a portion of this case is printed.

of the public the land of plaintiff, and being in derogation of common law and common right, "the utmost strictness is required in order to give it validity; and unless upon the face of the proceeding it affirmatively appear that every essential prerequisite of the statute conferring the authority has been fully complied with, every step, from inception to termination, is coram non judice." Ells v. Pacific R. R., 51 Mo. 200. The township board could only acquire jurisdiction to lay out a new road and assess damages as is provided in sections 24, 25 and 27, p. 110, of the act of 1873, that being the act under which the proceeding was had. These sections are as follows:

24. "The township board of directors may lay out or discontinue or alter any road, or lay out any new road, when petitioned for by any number of legal voters, who shall be householders of said township, not less than twelve, residing within three miles of the road so to be altered, discontinued or laid out; said petition shall set forth in writing a description of the road and what part is to be altered or discontinued; and if for a new road, the names of owners of land, if known, over which the road is to pass, the point at which it is to commence, its general course, and the place at or near which it is to terminate."

25. "Whenever any number of legal voters determine to petition the township board for the alteration or discontinuance of any road, or laying out a new road, they shall cause a copy of their petition to be posted up in three of the most public places in the township, at least twenty days before any action shall be had in reference to said petition."

27. "The damages sustained in consequence of the laying out, opening or altering a road, when the parties interested therein cannot agree, shall be ascertained and assessed by the township board."

It is clear from these statutory provisions that it is an indispensable prerequisite to laying out a new road that the petition for the same must be made by twelve legal voters and householders of the township living within three miles of the proposed road, and that a copy of such petition must be posted in three of the most public places in the township at least twenty days before any action can be taken in reference to it. These facts are jurisdictional and must affirmatively appear in the proceedings, and unless they do so appear no jurisdiction is conferred, and none can be exercised. The object of requiring a copy of the petition to be posted up was to impart notice to the landowner that the public proposed to make an appropriation of his property to a public use, and completely deprive and divest him of all control over the same; and in order that such notice might be effectual, it is not only provided that such copy shall be posted up in three places in the township where the road is proposed to be established, but that these places must be three of the most public places in the township. The record before us entirely fails to show a compliance with the law in these respects, it only appearing therefrom "that it was proved to the satisfaction of the board that notice of the opening of said road had

been posted in three places along the line of the road for twenty days previous to this date." Neither does it appear from the face of the petition, or any other part of the record, that the road was petitioned for by twelve legal voters and householders of the township living within three miles of the road. The persons signing the petition are designated as citizens of Weston township.

It therefore follows that, as the facts necessary to confer jurisdiction on the township board do not affirmatively appear, under the rulings of this court in the case of Ells v. Pacific R. R., supra, and the case of Carpenter v. Grisham, 59 Mo. 247, the judgment must be reversed and the cause remanded to be disposed of in conformity with this opinion. All concur.

SECTION 15.-Same-IN ENFORCEMENT PROCEEDINGS.

PEOPLE ex rel. GREENWOOD et al., Highway Com'rs, v. BOARD OF SUPERVISORS OF MADISON COUNTY. (Supreme Court of Illinois, 1888. 125 Ill. 334, 17 N. E. 802.)

Appeal from Appellate Court, Fourth district.

Proceeding by mandamus by Peter Greenwood, J. M. Kendall, and John T. Brown, Highway Commissioners of the Town of Wood River, against the Board of Supervisors of Madison County, to compel an appropriation of one-half of the cost of building a bridge in the town of Wood River. Mandamus denied, and relators appeal. SHOPE, J.13 * * * The main controversy, however, arises upon the instruction given by the court directing a verdict for the defendant. As the case stood at the time the instruction was given, it was entirely competent for the court, and correct practice, to direct a verdict for the defendant, for the reason that there was not before the jury sufficient evidence to support a verdict for the relators. But back of this instruction lay the action of the court in rejecting the evidence offered by the relators. If the offered evidence was competent, and tended to sustain the issues on behalf of the relators, its rejection was erroneous, and the instruction improperly given.

Under the practice prevailing prior to the present statute relating to mandamus, the alternative writ became the foundation of all subsequent proceedings in the case, answering the same purposes as the declaration in ordinary actions. This being so, it was necessary that the alternative writ should show upon its face a clear right in the relator to the relief demanded. Therein the relator was required to distinctly set forth all the material facts on which he relied, so

13 Parts of this case are omitted.

that the same could be admitted or traversed. Trustees v. People, 12 Ill. 248, 52 Am. Dec. 488. The statute referred to (Starr & C. Ann. St. 1896, p. 1584), while it has changed the practice, dispensing with the issuance of the alternative writ, and requiring the defendant to answer, plead, or demur to the petition, has not modified or dispensed with the common-law requirement resting upon the relator to set forth and show a clear and indubitable right to the relief demanded. In every case, to entitle the relator to relief, it must appear that the defendant is under a legal obligation to do and perform the act required, and every material fact necessary to show such legal duty must be averred in the petition. Hall v. People, 57 Ill. 307; People v. City of Elgin, 66 Ill. 507; People v. Village of Crotty, 93 Ill. 180.

The act in relation to roads and bridges under township organization, approved May 28, 1879, and in force July 1, 1879 (Laws 1879, p. 257), is broad and comprehensive in its terms and provisions, embracing within its scope the establishment, alteration, construction, repair, maintenance, and supervision of roads and bridges within organized towns. The immediate control and supervision of roads and bridges in a town was vested in three commissioners of highways, who were required to meet at a designated time and place, and to organize by choosing one of their number treasurer, and thereafter to fix their own time and place of meeting; and, by the thirteenth section of the act, the commissioners were required to "keep a correct record of their proceedings at all meetings." Although reference is here made to the particular act named, in prior as also in subsequent acts similar provisions appear, and like powers were vested in, and duties imposed upon, these boards of highway commissioners; and they are now, and were under this particular act, regarded and held to be a quasi corporation, powerless to act except together and as a body (Commissioners v. Baumgarten, 41 Ill. 254; McManus v. McDonough, 107 Ill. 95), and of which action, as we have seen under the act of 1879, they were required to "keep a correct record." It seems clear that the same rules of law are to be applied to this corporate body, in respect to its corporate action, and the evidence of such action, as are applied to other municipal corporations; and that the record of its action, required by law to be made and kept, becomes the best, and, if in existence and capable of being produced, the only evidence thereof.

The 110th section of the act of 1879 provided under what circumstances a moiety of the expense of the construction of a bridge in any town might be borne by the county. To avail of such county ajd, and as the basis of any action to that end by the county authorities, it must appear (1) that a necessity existed for the construction or repair of such bridge; (2) its construction or repair must be an unreasonable burden on the town; (3) the cost must exceed such sum as could be raised in one year by ordinary taxation for bridge pur

poses in the town; and (4) that one-half the necessary funds therefor had been provided by the town. These facts are by the law made jurisdictional; and, without their existence and concurrence, the county board was without power to appropriate money from the county treasury for the purpose stated. The determination of these jurisdictional facts is by the act left to the commissioners of highways. Acting, as alone they had the power to act, together and as a board, at a meeting of the board, they were to determine that the construction or repair of a bridge within their territorial jurisdiction was necessary; that its construction or repair would be an unreasonable burden on the town; that the cost thereof would exceed the sum that could have been raised in one year by ordinary taxation for bridge purposes in the town; and that they, by means under their control, had provided for one-half the necessary expense— of which determination they were required by the act to make and keep a record. And this same section of the act (section 110) made. it the imperative duty of the county board, whenever the commissioners of highways of a town brought themselves within the provisions of the act, to appropriate out of the county treasury one-half the cost of the proposed construction or repair. In the case under consideration, the commissioners of highways of Wood River township sought to avail of the provisions of the act referred to; and, if the case made by their petition and proofs was such as to bring them within the law, the writ should have been awarded.

By the averments of relators' petition a prima facie case was made. Issue being taken thereon, it became necessary for relators to maintain, by competent testimony, the truth of every material averment; taking upon themselves the same burden that rests upon the plaintiff in an ordinary action at law where the averments of the declaration are put in issue. To meet this requirement the relators produced as a witness the town clerk of Wood River, who was also the clerk of the commissioners of highways for the year 1882, who testified that the commissioners held meetings on April 19, August 19, and September 2, 1882; and, on his being asked if the commissioners of highways of the town did not determine to build a bridge, an objection was interposed by the defendants, and sustained by the court. This ruling of the circuit court was unquestionably correct. As we have before stated, the determination by the commissioners of highways that a necessity existed for the construction or repair of a bridge, as a basis for an application to the county board for county aid under the statute, was an exercise of a corporate power vested in the commissioners of highways, which could only be at a meeting of the commissioners, and be shown by the record required by the law to be made and kept. Before the county board could be legally moved in the matter, or any legal duty be cast upon them, the commissioners must have determined that such necessity existed, and have preserved FR.ADM.LAW.-7