Opinion
December Term, 1899.
Motion for reargument or for leave to appeal to the Court of Appeals denied.
It would be very desirable to have the question of the legality of the condition imposed by the highway authorities decided by the court of last resort; and we would certify the case to that court were it not that our disposition of the appeal also proceeded on a matter of fact, to wit, the failure to prove that the required consents were obtained of the property owners. This question of fact of course the Court of Appeals cannot pass upon; and as it leads to the upholding of our order, the appeal to the Court of Appeals would not be entertained. If we are correct in our conclusion that this is a condition which the town authorities can impose, we are of opinion that it must necessarily follow that it is a condition that they can enforce. The question does not go to the corporate life of the defendant, which the State alone can challenge, but only to its franchise to build its road in this street. Application denied.