#### Morris vs. Ferguson and others, Supervisors of the Town of Caledonia.

Commissioners appointed under sec. 79, chap. 19, R. S., to determine an appeal from a decision of town supervisors in laying out a highway, have no power to review and reverse such decision for errors of law, but are confined to an examination of the necessity or propriety of laying out such highway, assuming all the steps previously taken to have been regular.

Any irregularity in the proceedings of the supervisors in laying out, altering or discontinuing a highway, may be reviewed and corrected in the circuit court by means of a common law writ of certiorari, provided such irregularity appears from the *return,*of the supervisors; but the court will not, upon such a writ, go beyond the return and review questions of fact.

APPEAL from tbe Circuit Court for *Hacine*County.

Tbe nature of tbe case is stated in tbe opinion of tbe court. Tbe petition for tbe establishment of tbe highway alleged that six of tbe petitioners were freeholders and residents of tbe town, and tbe order of tbe supervisors laying out the highway recited tbe same fact, and tbe fact that tbe applicants for said highway bad given to all tbe occupants of tbe lands through which tbe highway was to pass, five days notice of tbe time and place when and where the supervisors would meet and decide upon tbe application, and bad also posted up notices ten days before such meeting, in three public places, &c.

Tbe description of tbe line of tbe highway, contained both in the application made to tbe supervisors and in tbe notice which tbe supervisors caused to be served and posted, was as follows: “ Commencing two rods north of tbe west quarter post in section 34, town 4 north, of range 22 east, thence east to a point 2 rods north of the quarter line, 16 chains and 60 links west of the center of section 35 of said town and range aforesaid; thence to a point on the quarter line 11 chains and 17 links west of the center of said section 35; thence to a point in a road that runs north of Nickols’s past John Morris’s and so on past James Weed’s, one chain and 56 links south of the north line of the southwest quarter of section 35 aforesaid; the line of said sur*267vey to be tbe center of said highway.” The affidavit of service of the notice, stated that it had been served certain persons named therein, but did not show that these were “niZthe occupants of the lands through which highway ” was to pass. The notice and the order establishing the highway were signed by only *two*of the supervisors of the town, and it does not appear from the record that the other supervisor met or acted with them at the time fixed by the notice, which was the time the order was made, or that he had received any notice that a meeting of the supervisors was "to be had at that time.

*George B.*Judd, for appellant:

If all three of the supervisors of the town had been present, or had notice of the time and place of the meeting at which the proceedings complained of took place, then a majority might have acted, but not otherwise, R S., chap. 5, sec. 1, subd. 3 ; 1 Cow., 238; 6 Johns., 39; 1 Johns. Ch., 334; 7 Wend., 534. 2. The recital in the petition that it was signed by six freeholders, is not sufficient; the fact must be proved by competent testimony. 2 Wis., 129. 3. The notice of the application should .have described the several tracts of land through which the highway might pass. R S., chap. 19, sec. 56. A strict compliance with the law is required in such cases. 6 Wis., 142; 7 id., 127. 4. It does not appear from the affidavit of service, that the notice was served upon “ *all*the occupants of the land through which the highway may [might] pass.” R S., chap. 19, sec. 66.

*A. W.*Farr, for respondents,

contended'that the court below was right in deciding that it had no jurisdiction; and that the return to the *certiorari*showed all the proceedings regular and valid:

November 2.

*By the*Court,

Cole, J.

This was a common law writ of certiorari, issued out of the circuit court of Racine county, directed to the defendants in error as supervisors of the town of Caledonia, for the purpose of reviewing their proceedings in laying out a highway. It appears from the record that the circuit court dismissed the writ for want of jurisdiction to hear and determine the same. The general *268power of tbe circuit courts of this state to issue common law of certiorari, would not probably be questioned. Both the constitution and statute give them power to award this and it has frequently been exercised in this state. Sec. 8, Art. YII, Constitution; sec. 4, chap. 116, B. S. But while the jurisdiction of the circuit court to award the writ in a proper case would probably not be controverted, it is claimed that this is not such a case. It is contended that the only remedy of a party aggrieved by the errors or mistakes of supervisors in laying out highways, is by an appeal to commissioners under the provisions of chap. 19, B. S.

We do not suppose the intention of the statute was to give the commissioners power to review and reverse the decision of the supervisors for errors of law. The commissioners are confined, on the appeal, to an examination of the case upon the merits — that is the necessity or propriety of laying out the road, assuming all the previous steps taken to have been regular. They are not to review legal questions, or irregularities which might exist in the preliminary steps. See the cases of *Lawton et al. vs. The Commissioners of Highways of*Cambridge, 2 Caines, 179, and *The Com’rs &c. of*Warwick, *vs. Judges of Orange*Co., 13 Wend., 432; *State ex rel. Doxtader vs. Bailey et*al., 6 Wis., 291. Any irregularities or legal questions growing out of the proceedings of the supervisors in laying out the road, might be reviewed and corrected by a common law writ of certiorari, provided they appeared upon the record or in the return. But the court will not, upon a common law writ of certiorari, go beyond defects appearing upon the record, and review questions of fact. *Stokes vs. Knarr,*11 Wis., 389; *Allyn vs. The Com'rs &c. of Schodack,*19 Wend., 342; *The People vs.*Covert, 1 Hill, 674. Now the difficulty with this case is, that the return of the supervisors shows no want of jurisdiction, nor any irregularities in their proceedings. And the errors of which the plaintiff in error complains cannot be reached by this writ, for the simple reason that we cannot go into a review of matters of evidence. We are confined to the defects appearing upon the return. It is objected that the supervisors had no authority to proceed and *269lay out tbe road, because tbe petition fo.r tbat purpose was not signed by at least six freeholders, and. tbat a proper tice was not given of tbe time wben tbey would meet and decide upon tbe application. Tbe return of tbe supervisors shows none of these defects. Tbey have returned a petition which purports to be signed ]jy six freeholders. Tbey give, too, tbe notice which tbey caused to be served upon tbe parties interested, of tbe time and place wben and where tbey would meet and decide upon tbe application. It is'said tbat it did not appear tbat tbe notice was.served upon *all*tbe occupants through whose'lands tbe road might pass. But all these things are matters of fact which tbe circuit court could not reach and inquire into upon this writ. They-might be inquired into in an action of trespass for laying out and opening this highway, or in any proceeding where tbe question of tbe legal existence of the road could be determined.

Another question desired to be reached by tbe writ is, whether the supervisors of Caledonia could lay out tbe highway, tbe same having, as is contended, been previously laid out by tbe supervisors of Orwell before tbe division of tbe town. But obviously the defendants in error can make no return in reference to tbe action of the supervisors of Orwell. How could tbey possibly have any knowledge of tbat matter, except from hearsay ?

We think, therefore, the circuit court should not have dismissed tbe writ of *certiorari*for want of jurisdiction, but have proceeded and acted upon the return. We have already stated tbat upon tbe return we see no errors or defects which would authorize tbe circuit court to reverse tbe action of tbe supervisors. If such errors of law exist, tbey can only be shown by .matters *dehors*tbe return. ■■ And this shows tbat tbe plaintiff in error mistook bis remedy in supposing tbat be could reach those questions by a common law writ of *certiorari.*

Tbe order of tbe circuit’ court is reversed, and tbe cause remanded for further proceedings in accordance with this decision.