Pollard v. Ferguson

11 Ky. 196, 1 Litt. 196, 1822 Ky. LEXIS 70

• Court: Court of Appeals of Kentucky
• Decided: June 6, 1822
• Status: Published

Opinion

OPINION OF THE COURT.

IN this case, it does not appear from the record, that the viewers were sworn, as the law requires, before they proceeded to view, mark out and report the road contemplated to be opened : and according to the authority of the cases, Davis vs. the County Court of Hopkins, 1 Bibb 514, and Elliot vs. Lewis, 1 Marsh. 452, this error must be fatal. It is true, that a certificate from a justice of the peace, appears in the record, that they were sworn by him. But this oath evidently applies to a former report ; for they had made a previous report, which was quashed by the court, and then they were sworn. They then, without any new order of appointment, made out another report to a subsequent term, on which the court acted in establishing the road. It is clear, that having once acted, and executed their authority, they had no power, without a new appointment, again to proceed to execute the duty. This is a general rule with regard to authority delegated by law to execute ministerial acts. The oath shown then might be made use of to support the former report ; but it cannot extend to the latter, which they had no power to make, without a new warrant. This proceeding without a new warrant, not only prevents the oath taken being made use of to support the last report ; but, after a reversal, forbids further proceedings under the original order.

The judgment is, therefore, reversed with costs.