Opinion
Argued February 3
Decided February 21, 1871
Lyman Tremain, for the appellant.
J.F. Crawford, for the respondent.
The affidavit of Ireland, although not positive, in some of its statements, is sufficient, in the absence of any contradictory evidence, to show that he was not present when the decision of the two appraisers, who made the report was arrived at, or when the report was signed.
The unsworn certificate of the proceedings of the appraisers, and the statements of fact contained in their report, were not entitled to be considered as evidence upon that point.
The act of 1856 does not direct or authorize the making of any such certificate, nor is any authority given by the act to the appraisers to report anything except the sum which they may estimate. The report or certificate of an officer is evidence only of facts which by law he is required or authorized to certify. In this case the act simply required the three persons to examine the property and estimate a sum, and to report that sum.
The compensation in this case was fixed and the report made by only two persons. There was no competent evidence that they rendered their decision at a meeting at which the three were present, but the proofs presented to the court tended to establish the contrary. There is no ground, therefore, upon which the proceeding can be sustained, even if the rule that a majority can decide is applicable to a case of this description, when less than three concur in a decision.
It is consequently unnecessary to determine whether the act of 1856, by authorizing the appointment of three persons to estimate the compensation, complies with the requirement of the constitution, that the compensation be ascertained by not less than three commissioners, nor the further question whether, if such an estimate as is provided for by the act be sufficient, it is necessary that at least three appraisers should agree in the estimate.
The order appealed from should be reversed, and the motion to confirm the report should be denied, with costs.
All the judges concurring, order reversed.