The petitioners complain that their lands have been declared forfeited for the non-payment of a tax, which they aver was illegally assessed to make or repair a road not legally located; and they pray that a writ of certiorari may issue to bring up the records of the assessment and location to the end that the same may be quashed. It is admitted that the facts stated in the petition are true.

We think the wilt prayed for must issue. It appears from the copy of the records before us that the county commissioners acted upon the assumption that roads located in unincorporated townships were to be opened and built by the owners of the land over which the roads passed; and they accordingly, as part of their proceedings in locating the way in question, ordered that the owners of the land over which it passed, open and make the same, and then closed their proceedings. This was erroneous. The statute then in force permitted the owners of the land to pay their proportion of the expense in labor, but it did not require them to do so. It required the county commissioners to appoint an agent to open and make the road; and as a part of the proceedings m *256establishing it, it required the commissioners to assess upon the lands that would be enhanced in value by the location, a sum sufficient to build the road, which was to be expended under the superintendence and direction of the agent. This they omitted to do. They ordered the owners of the land to build the road— an order which they had no right to make — and omitted to make an assessment for that purpose and appoint an agent to expend it, both of which the law did require them to do. These were grave andfundamental errors, sufficient to vitiate their whole proceedings. See act of amendment of 1858, c. 23, §§ 33, 41.

In 1868, more than three years after the proceedings in locating the road had been closed, the county commissioners undertook to remedy these errors by laying an assessment, which, by virtue of a statute passed the preceding winter, they had a right to do, nominally for the repair of the road, but in reality to build it; and it is for the non-payment of this tax that the petitioners’ lands have been declared forfeited. We think the assessment must be regarded as illegal for two reasons. In the first place it was no more competent for the commissioners to lay a tax for the repair of a road not legally located than it would have been for them to lay a tax to build it; and in the second place, the petitioners aver that no notice was given them of the assessment of the tax, and that they had no knowledge of it whatever. This averment we must assume to be true, for it is agreed that all the facts stated in the petition are to be taken as true; and there is no evidence in the case that the notice required by law was given. The copy of the record before us shows that the commissioners ordered the statute notice to be given; but there is no evidence that the order was ever complied with. We must therefore act upon the assumption that it was not.

Our conclusion, therefore, is that the assessment of the tax, as well as the location of the way, was illegal; and that the petitioners are entitled to the writ prayed for.

Prayer of the petitioners granted.