Burrows v. Vandevier

3 Ohio 383

• Court: Ohio Supreme Court
• Decided: December 15, 1828
• Status: Published

Opinion

By the Court :

It is objected that this writ ought to be dismissed, because this is not a case in which the exercise of a sound discretion requires that it should be allowed. It is admitted that the court possess jurisdiction to award it in a case like this; but urged that it ought not to be sustained, because the plaintiff in certiorari had a more easy and expeditious remedy in the court of common pleas. We assent to the justness of this argument, but under existing circumstances we have concluded to sustain the writ in question. As the jurisdiction is conceded, and no rule had been laid down with respect to cases in which it would be exercised, we are not willing to turn the party out of court in whose case a rule is first to be made known to operate in other cases. Hereafter we shall not sustain a writ of certiorari direct to any inferior jurisdiction where the court of common pleas have power to act, unless the case be attended with some extraordinary circumstances; and these must be of a highly imperative character, or the party will be sent first to the common pleas — which, in ordinary cases, is the most appropriate tribunal.

^Numerous errors are assigned in the proceedings of the commissioners in establishing the road and directing it to be opened. But as we agree to reverse the order upon a single point, it is deemed unnecessary to notice any other.

After the first application for this road, and before the order •passed for establishing and opening it, the law for opening and regulating roads and highways was changed. Although the new law contained no provision for the continuance and completion of applications pending when it took effect, we are satisfied that it so operated upon them as to preserve them in the condition in which it found them. So far as the repealed law was their foundation, they must be sustained under that law. But all that remained to be done, when the new law took effect, must be in conformity to the provision of that law.

The act of February 26, 1824, provides expressly that “all county roads shall be sixty feet wide.” This order directs the road, which is a county road, to be opened forty feet only in width. It is consequently in conflict with a positive legal provision. And for this cause is reversed.