In re Public Road

4 N.J.L. 396

Opinion

By the Court.

Under our road act, we look into the proceedings of the courts, and adjudge upon them, but not into the irregularity or illegality of the proceedings of the surveyors. The * court to whom the application is made, is directed to appoint six surveyors of the highways, to lay out the road. Bloom. 238. In Pat. 285-6-7, the persons appointed to be surveyors in the several townships, are directed, within six, days to take and subscribe the oath of office, and within six more, to transmit or deliver it to the clerk of the township, who shall file it; and if this oath be not taken and subscribed, or transmitted, or delivered to the clerk within the time prescribed ; the neglect shall be deemed a refusal to serve in such office,

(a) The person refusing is not an officer. When the court appoint .such an one, it is imposed they do not appoint six surveyors. It is however tended that such a man shall be considered an officer de jado; and his acts, in which the public is interested, be valid, and there are many sayings in the English books about officers who have not taken the oaths under the test acts; which seem to support the position. But the sources from wdience the reasoning is drawn, is not calculated to constrain the assent of this court. It is in itself unsatisfactory, and completely overrules the express directions of the legislature.

Let the return be set aside.

Fisher vs. Allen, 3 Hal. 301. State vs. Davis, 1 Gr. 10. State vs. Barnes, 1 Gr. 268. State vs. Lawrence, 2 South. 850. State vs. Burnet, 2 Gr. 385. State vs. Ayres, 3 Gr. 479. State vs. Northrop, 3 Har. 271. State vs. Shreve, ante 297. State vs. Willingborough, Coxe 128. Hoagland vs. Culvert, Spen. 389. State vs. Hutchinson, 5 Hal. 242. State vs. Green, 3 Gr. 89. Acts of 1870—10.