Inhabitants of Rutland v. County Commissioners of Worcester , 37 Mass. 71 ( 1838 )

Per Curiam.

This is an application for a prohibition to the county commissioners, to prevent their issuing a warrant against the town of Rutland, until a petition for a- certiorari can be taken into consideration, and the petitioners propose to show that when the question of granting a certiorari shall be heard, they can prove such errors as will require the proceedings of the commissioners to be quashed. A petition for a writ of certiorari is well understood to be addressed to the discretion of the Court. When die record is before the Court upon the return of the writ, the Court will look only at the record ; for this reason it would be futile to admit evidence to contradict the record, on the petition for a certiorari ; but it being within the discretion of the Court to grant or refuse the writ, evidence extrinsic to the record may very properly be received, to show that no injustice has been done, and that a certiorari ought not to be issued. The petitioners in the case before us, will in the first place exhibit the" record and point out in what particulars they deem it to be erroneous or defective ; and then the respondents may prove by extrinsic evidence, that no injustice has been done, that if the proceedings shall be quashed, the parties cannot be placed in statu quo, or that for any good reason a certiorari ought not to be granted. If such evidence shall be offered by the respondents, the petitioners will of course have a right to rebut it by like evidence.

The respondents being directed by the Court to introduce their evidence, if they intended to exhibit any, Lincoln arid Davenport were examined in support of the proceedings of the commissioners ; and Washburn called a witness and read several affidavits to rebut their testimony.

Hoar and Washburn now contended, that as at the time of the view a party interested appeared and objected that the proposed highway was not of common convenience and necessity, it was the duty of the commissioners to give further notice to all parties interested, before they proceeded to lay out the way. Revised Stat. c. 24, § 6 ; Ex parte Weston, 11 Mass. R. 417 ; New Salem, Petitioners, 6 Pick. 473 ; Gerrish v. Morss, 2 Pick. 628 ; Freetown v. County Commissioners of Bristol, 9 Pick. 46.

County commissioners are judicial officers, and should therefore be appointed by the governor ; but the respondents were elected by the people, and consequently their proceedings were unauthorized and void. Constitution, c. 2, § 1, art. 9.

The board of commissioners by whom the highway , was laid out, was not legally constituted, inasmuch as a part of the road lies in the town in which one of them resided, and who therefore was not disinterested. Revised Stat. c. 14, § 26, 27. The record states that Ammidown was “ obliged to be absent,” but the evidence is that he merely had an engagement as an agent for constructing a rail-road ; which is not the inability contemplated by the statute.

March 22d.

Sprague contended that the double notice given by the commissioners, that they would view the road, and that if they should adjudge it to be of common convenience and necessity, they would then proceed forthwith to lay it out, was a legal and valid notice. But if not, then it is a question of construction of the statute, whether by the objection of the party is meant an objection to the laying out, or an objection to the adjudication that the way is of common convenience and necessity ; if the former, then this record is full, if the latter, it is defective in not stating that after the adjudication a new notice was given in regard to the laying out. No injustice however has been done, and under the circumstances of the case th§ Court, in the exercise of its discretion, will not award a writ of certiorari.

Shaw C. J.

delivered the opinion of the Court. On the question whether the county commissioners are constituted in a manner not conformable to the requisitions of the constitution, the Court do not feel called upon to give an opinion. If the whole organization is contrary to the constitution, and all its proceedings are void, there would seem to be no occasion for, and no fitness in sending to them, either a writ of prohibition or of certiorari. Their proceedings would be a, mere nullity.

This application is merely ancdlary to the petition for a certiorari, and sought for, to keep things in statu quo, until the other petition can be heard and acted upon.

If the claim for a writ of certiorari cannot be supported, then this writ would be useless ; therefore the petitioners have very properly laid before us, the petition for a certiorari which they propose to present hereafter to this Court when sitting in April.

That petition sets forth the grievances, of which they complain, and both may well be considered together.

These applications are both to the discretion of the Court, and ought not to be granted, even if the record, when returned on certiorari, would appear to be defective or informal, where substantial justice has been done, or where, if the proceedings are quashed, ruinous or very mischievous consequences would ensue, and where, upon such reversal of proceedings, parties cannot be placed in statu quo.

The first complaint of the petitioners is, that they had no legal notice of the location of this road, as provided by statute. Revised Slat. c. 24, § 6.

The Court are inclined to adopt the construction of the statute, claimed by the petitioners, that the case where the commissioners, after the adjudication that a highway is of common convenience and necessity, may proceed to lay it out without further notice, is, where on the view and previously to the adjudication no person has appeared to object to the proceedings, and where, in effect, the matter proceeds by consent. We therefore are of opinion, that, as there was an appearance, and opposition to the establishment of the road in the present case, it was not within the exception, and that there ought to have been a further notice, conformably to the statute, unless such notice was waived, or the party complaining agreed or consented to an informal notice.

The argument then is, that if the notice was not given conformably to the statute, the parties were not regularly before the commissioners, the proceedings were without their jurisdiction and void. But we think that this conclusion does not follow. In the first place, it appears, that the petition was duly filed, and that a notice issued strictly conformably to law, so that the parties and the subject matter were fully before the commissioners. They had jurisdiction both of the parties and of the subject. All the subsequent proceedings were steps in the same cause ; and although the statute directs that notice shall be given as well of the hearing on the petition for a highway, as of the view and laying out, yet such second notice was not necessary to give the commissioners jurisdiction, it was required for the benefit of those interested, and therefore each of the parties thus interested might waive the statute notice, and take a shorter or more informal notice, so far as their own rights were concerned.

Then whether upon an examination of the record alone. it would sufficiently appear that such notice was not given, it is not necessary to consider, because the Court are of opinion, that in this stage of the inquiry the question is, although such notice does not appear, by the record, to have been given, still whether the party complaining has suffered any wrong or injustice from such a defect. If the notice required by law was in fact given, although it does not appear on the record, or if such notice was given as sufficiently to apprize the town, of the intended proceedings, and they might have availed themselves of it; and more especially, if the town, knowing of the supposed defect, were willing to lie by until the proceedings were carried into effect, without stating their objection, they cannot complain of any wrong done them.

Suppose the commissioners, by a misconstruction of the statute, give notice in fact to the town or its agents, in a mode not conformable to the statute, and are proceeding m the belief that the notice is valid, and the town, in the expectation of getting some advantage, voluntarily suffers them to proceed, without objection, they cannot afterwards be heard to complain that they have suffered for want of notice.

Now the Court are all satisfied on the evidence offered in this matter in behalf of the respondents, to guide the discretion of the Court, that, when the adjudication was made, or very shortly after, it was known to the town by its agents, that at the time of such adjudication, it was notified to all parties concerned, that the commissioners would proceed to locate the road at a time then fixed, that notice was given to the town, by one of its agents appointed to see to the interest of the town, as well in the location as the viewing and establishing such highway, that the- commissioners would hear the towm both upon the subject of location and upon the subject of the amount to be allowed to the town from the county treasury, and that this was done before they proceeded to lay out that part of the road which lay in Rutland, and fixed a convenient time and place for that purpose. It may be considered the duty of that member of the committee, under the trust reposed in him as one of the agents of the town chosen for this purpose, to give this notice to the other agents of the town, and it must be presumed that he did so. It further appears, that at the time and place assigned, the commissioners did attend, and the same member of the committee also attended, and though he states that he intended to appear in his individual capacity and not for the town, yet he had an opportunity to act in behalf of the town, and the commissioners considered him as the agent of the town and acted upon his suggestions, by examining the route which the petitioners now say they would have preferred, and would have proposed.

It further appears, that the petitioners were apprized of these supposed defects, as early as December 1836, before any order had passed, requiring the town to make the mad, and by communicating their wishes to the commissioners there was time to correct any error in this matter by giving them a more formal notice, and proceeding to a new location ; but no such application was made to the commissioners. In December the order passed requiring the town to make the road previously to the end of the next September, and notice of this was served upon them early in January.

In March, the commissioners, by their chairman, informally stated to one of the selectmen of Rutland, that if the town had any intention of calling in question the validity of the proceedings, it was desirable that it should be done before the then ensuing April term of the Supreme Judicial Court, in which case they would suspend all further proceedings till their legality could be settled. This was no doubt communicated to the other selectmen of the town, but no such application was made. It is stated by the witness, Fletcher, that he did not consider this as an official communication, which they were bound to take notice of. It was not made as an official communication. But the object was a proper and reasonable one,-that if their proceedings were irregular or erroneous, they might be corrected, before the rights of others were irretrievably committed. It was not in the power of the commissioners, officially to institute any legal measures to try the validity of their own proceedings , they must of necessity wait, till these proceedings were called in question by others. This informal communication has no bearing on the legality of the proceedings of the commissioners, in locating the road ; but we think it has a strong bearing upon the question, as one of discretion and expediency, whether the Court at the instance of these petitioners, ought to aid in causing these proceedings to be quashed, after the county has been compelled to pay the whole amount of the cost of the road, when, if the petitioners had proceeded as requested, the same question might have been determined before the expense had been incurred. No satisfactory reason has been given why the petitioners, if they considered themselves aggrieved by the illegal or erroneous proceedings of the commissioners, did not present their petition for a certiorari, either at the April term 1836, of the Supreme Judicial Court, or at the ensuing October term. The commissioners, after the time fixed by their order for making the road had expired, and being informed of no objection to their proceedings, were bound in justice to the other towns, who had complied with their order, to take measures for making this road if the town of Rutland failed to do it. In July they publicly advertised for contracts to be taken on the 20th of September, the time originally fixed for making the road, after which there was ample time for the petitioners to have preferred their petition to the Supreme Judicial Court for a certiorari and to have given the commissioners notice. ' But no step was taken by them till the contracts were made, the county bound, and the money paid out of their treasury. Under these circum- . stances, the Court are of opinion, that the proceedings ought not to be quashed, unless for some substantial injustice done to the petitioners, some loss or inconvenience brought upon them, in the course of these proceedings, which they could not have avoided. If notice was in fact given, upon which the town could have acted, and upon which all their rights could have been preserved, and they did not choose to act upon that notice, the jurisdiction having been secured by a former legal notice, this want of a precise formal notice according to the statute, is not such a substantial illegality as to justify the Court in quashing the proceedings, when upon their being thus quashed, great injustice would be done to the county, and for aught that appears,, they would be without remedy.

The petitioners complain in their petition, not only that the proceedings in the location were made without notice, as required by the statute, but that of those proceedings they were wholly uninformed. The latter assertion, if intended to be understood literally, is not supported, but is contradicted and disproved by the evidence. They were informed of the preliminary proceedings, to a certain extent they were heard by the commissioners, and to any extent they might have be<m heard, had they chosen to avail themselves of the information.

The consideration which weighs strongly with the Court is, that if there be error in the proceedings, it is rather in the nature of an informality, by which the defendants suffered no injustice that if they considered it otherwise, and really desired to be heard by the commissioners on the question of location, they had ample time to do it ; that if they intended to insist on the want of legal notice, and to reverse these proceedings on that ground, they had full opportunity to do so before the rights of others would be injuriously affected by the reversal, but voluntarily forebore to do it ; and that to quash the procee lirgs now, would tend injuriously to affect the rights of the county and of other towns, to a great extent.

2. The other principal objection urged to this proceeding is, that John W. Lincoln, Esquire, the chairman of the county commissioners, acted in the location of this road through the town of Rutland, although he was interested in the subject matter. The Revised Statutes consider a commissioner who is a citizen of .the town, or'one of the towns, through which the road is to pass, as cjuasi interested, and not competent to act in that capacity, when such interest exists, unless where a board cannot be organized without. But the Court are of opinion, that it does not sufficiently appear upon the record, that the chairman, Mr. Lincoln, was so interested in the present case. It is to be considered that there is a manifest distinction between the original adjudication and the subsequent location, in this respect. The original petition was for a public highway, beginning at 'the common in Barre and extending through various points to Newton’s mills in Worcester. This was to be considered as a whole, embracing the eutii'e extent between the termini. It embraced therefore a section within the town of Worcester, and in regard therefore to this preliminary question Mr. Lincoln had the interest contemplated by the statute. But on this part he did not act. The petition was heard and decided by a board otherwise constituted, and of which there is no complaint.

But we think that after the adjudication of common convenience and necessity embracing the whole route, and when the location came to be made, the question was different. By the very effect of this previous decision, adjudging the way as prayed for in the petition, the termini were fixed, and also various intermediate points were fixed, which could not be altered or affected by the location, one of which was a point near Paxton meetinghouse. This adjudication necessarily broke the whole line into several sections, having their respective fixed termini, and a commissioner might have an interest in regard to one, and not in regard to another, and might therefore act on one as 'disinterested, though from his habitancy, he might be interested in another. This occurred in another instance on this same road. Mr. Crawford, one of the commissioners, residing in Rutland, acted in Paxton only, and did not act in the laying out, so far as that town was concerned. Mr. Lincoln acted in laying out this road through Rutland, and as far down towards Worcester as Paxton, but no further. Whatever might have been his interest in that section of the road which lay in Worcester, we think be had" none in that part which lay through Rutland, and therefore that the proceedings are not erroneous and not liable to be quashed on that account.

These are the leading and principal objections urged. The Court are of opinion that they are not such as to warrant or require them, in the exercise of the high discretionary authority vested in them, to interpose in this stage to stay the proceedings of the commissioners, in favor of the town of Rut land, under the circumstances as they have been presented before us, and therefore, that this petition be dismissed.