#### The State *against*Potts and others. *(a)*

ON CERTIORARI.

Matter of public road.

Mode of appointing surveyors.(b)

Time between applications for same road. (c)

Constitutionality of road act. (d)

ON the 16th day of *March*1814, surveyors of the highways appointed by the Common Pleas of *Hunterdon,*at the *February*term preceding, laid out a public road or highway, in the city of *Trenton.*Mr. *Lealce*filed!' a *caveat*against recording the return of the surveyors, and at *May*term, freeholders were appointed to view said road, and not making any certificate of approbation or disapprobation, the court, in *August*term, ordered the return of the surveyors to be recorded in the road book. The proceedings wei;e removed into the Supreme Court by *certiorari, and in the term of *November*1815, the return and proceedings were set aside, and made null and void, *397upon Hit ground, that two of the persons who were appointed by the court, and acted as surveyors of the highways, in laying out the road, had never taken and filed the oath of office prescribed by the statute; and were therefore not surveyors, nor legally authorised to act in the matter. The same freeholders made a second application to the court for the appointment of surveyors, to lay out a road, beginning at the same point and running generally the same direction with the former one, and ending in the same public road; but not at the same point, and varying in some degree in one or more of the courses. The surveyors were appointed at *February*term 1816, and laid the road, as applied for, on the 12th of *March*1816. Their return was ordered to be recorded, and the return and proceedings thereon were removed into the ¡Supreme Court by certiorari: *Samuel Leake,*who believed himself injured by the laying of the road, being the prosecutor of the certiorari. Three reasons were filed and relied upon by the prosecutor, for setting aside the proceedings.

1. That there was not one year between the time of making the first road null and void, and the time of laying out the second road. 2. That the private property of the prosecutor had been taken for public use, without just compensation therefor. 3. That the order of the court, purporting to be an appointment of the surveyors, was illegal and void, because it did not appoint them by name, but by townships, *viz. “*the two surveyors of the highways of *Trenton,”*&e.

Upon the 1st reason, *Leake*read *Bloom.*243, section 3, and contended, that the year there mentioned, must be calculated from the ending of the litigation upon the first road, to the application for the second; between which periods, in this ease, one whole year did not intervene. *Hanning.*155. 2. That the law under which the surveyors acted, and the road was laid, was unconstitutional and void. *Pat.*83, 93. *5th Amendment to Con. US.*1 *Bl. Com,.*139. 3. He insisted that the court did not *appoint*any of the surveyors. The words of the statute are, “ to appoint six of the surveyors of the highways of the said *398county.” These words can only be satisfied by designating the persons by name. An officer, ministerial or judicial, can be appointed in no *other way. *Bac.*753, 758, let. c 760. *Cowp.*29. In this case it was peculiarly important that the persons .should be. named; they are responsible for improper conduct, and may be prosecuted for a penalty if they neglect to attend. *Bloom.*243, *sec.*8. Besides, it cannot otherwise appear that *six*were appointed. It is not shewn that there were' two surveyors in each township.

*Ewing,*in answer,

was directed to confine himself to the first and second reasons. Upon the 1st he contended, that this was not the same road ; that the law requires-an artisan surveyor to be called in, to aid in the laying, and its whole spirit requires, the word *same*to be construed, as meaning mathematical indentity. But if it were not the same road, the provisions of the statute were not violated either in their letter or spirit. *Bloom.*242. The *year*is only spoken of in cases, where the freeholders have made report, or having been called and failed to make report, the return of the surveyors has been recorded. 3rd reason. The law does not require any particular mode of appointing. The court is to appoint six, and a designation by office, is as effectual for the purpose, as by name, provided the persons be rendered certain. Here both the number and the persons are rendered certain, by the law which requires *two surveyors*to be appointed in *each township,*at the annual town-meetings.

(a)

**Affirmed on writ of error, *2 South. 862.*Cited in *State vs. Hanford, 6 Hal. 71.*And see *State vs. Vandervere, 1 Dutch. 669.*

(b)

*Matter of Highway, Pen. *948. State vs. Atkinson, 3 Dutch. 420. State vs. Bergen, 1 Zab. 342. Parsell vs. State, 1 Vr. 530. State vs. Van Buskirk, 1 Zab. 86*.

(c)

*Matter of Highway, Pen. *666. Matter of Highway, Pen. *1038.*

(d)

*In matter of Highway, 2 Zab. 307. State vs. Seymour, 6 Vr. 53.*

The court ruled. 1. This is the same road, the same laying out, within the meaning of the statute, as the one which was set aside, by this cour£ in *November*1815. 2. The limitation in the act, applies only to cases, where there has been a decision upon the merits, so as to prevent the agitation of the question anew, without one year. This second application was therefore not unlawful ; the former laying out, not having been set aside upon the merits. 3. Whatever may be the weight of the constitutional objection, against the road act, it cannot, at this day be questioned, in this court. 4. There is some doubt *399as to this mode of appointing. The surveyors ought, in the order of the court to be designated, both by name by townships. But inasmuch as the statute, guards with great caution against setting aside any of the proceedings under it, for matters which are formal or technical; as there was no uncertainty, as to the persons designated for the duty ; as six surveyors really were appointed, two in each of the townships named, all were notified, and all ^except one, attended and acted ; and as no possible injury could be conceived to have befallen the party, from the form and mode of appointment; the court did not think the objection ought to prevail.

Judgment of Common Pleas affirmed.