Smith v. Mayor of Boston , 67 Mass. 72 ( 1854 )

Shaw, C. J.

The only question before the court is, whether the mayor and aldermen of the city of Boston, exercising in this respect the powers of county commissioners in other counties, have made a' final adjudication upon the petitioner’s claim foi damages, either allowing or disallowing the same.

The proper purpose of a writ of mandamus, is to require a tribunal of special, peculiar or inferior jurisdiction, to take cognizance of a case properly brought before them, and decide upon it one way or the other. But it is not the province of this court, on an application for a mandamus, to revise the decision of such a tribunal on its merits. If a petitioner feels aggrieved by an adverse decision, his course is to make an' application to the court of common pleas for a jury, under Rev. Sts. c. 39, § 57, and c. 24, § 55, in the nature of an appeal. When the commissioners decide that the petitioner is entitled to no damage, they pass a judgment on the subject of damages, as fully as if they had estimated some damage, with which the petitioner was dissatisfied. Carpenter v. County Commissioners, 21 Pick. 287. In that case, the court did grant a mandamus; but it was because it was the duty of the same tribunal, first, to adjudge on the question of damage, and if they found that the petitioner had sustained no damage, then, if he were dissatisfied, to issue a warrant for a jury, to enable him to have their judgment revised in a due course of law. Having adjudged that the petitioner had sustained no damage, the other branch of their duty remained, which was to issue a warrant, on the application of the petitioner, which was a ministerial duty, and "which they declined to perform. The mandamus was granted, to require them to issue their warrant for a jury.

In the present case, if the mayor and aldermen have finally decided on the subject, they have done their whole duty; it was not their province to issue a warrant, but it was for the petitioner himself to proceed at once with his application to the court of common pleas. So the question here is, as before stated, whether they have made such a decision. It appears that the petitioner has, in fact, applied for a jury, and we have no doubt that the order passed by the mayor and aldermen is a final decision or adjudication by them upon the matter. See Tappan v. Bruen, 5 Mass. 195, 196; Monagle v. County Commissioners, 8 Cush. 362. Perhaps the order would have been more precise, accurate and intelligible, if it had stated, in terms, that the petitioner had sustained no damages. But the last clause in this order, “that the said respondents be hence discharged and go thereof without day,” a very common form of judgment, especially in proceedings not strictly according to the course of the common law, is intelligible enough; and the order is clearly a final adjudication. There is therefore no ground for issuing a mandamus. Petition dismissed.