Greene v. Inhabitants of Milford , 139 Mass. 69 ( 1885 )

W. Allen, J.

Several objections are made to the regularity of the proceedings of the appellants from an order of the board of health of the town of Milford, under the Pub. Sts. e. 80, § 84, in applying for a jury under § 88 of the same chapter. One irregularity is fatal to the proceedings, and we need not consider the other objections that have been argued.

The statute provides that the appellant shall, within three days after service of notice of the order upon him, “apply to the Superior Court, if in session in the county where such order is made, or in vacation to a justice of said court, for a jury;” and that if, by accident or mistake, he fails to apply within three days, and “makes it appear to the court or justice that such failure was caused by mistake or accident,” the time shall be extended to thirty days. Pub. Sts. c. 80, § 88.

As the Superior Court was in session at Worcester on October 27, when the application was made to a justice of the court in Boston, he had no authority to act upon it. The recital in the warrant issued to the sheriff, that “the Superior Court not being now in session in said county of Worcester,” is necessary to give validity to the warrant upon its face; but it is the fact, and not the recital of it, which gives jurisdiction to the justice. A special and limited authority is given by the statute to a person, not to a court, and it does not include jurisdiction to determine finally and conclusively the question of his own authority. If there was any hearing or adjudication upon the question, which does not appear, the respondent had no opportunity to be heard, and it took the objection as early as it was possible to take it.

It is contended that the warrant was in fact issued on November 12, at a time when the court was not in session at Worcester, and not on October 27. The warrant itself shows that it was issued on October 27, and the appellants failed to sustain a motion in the Superior Court to amend it. But we think that the facts, apart from the record, show that the application was made, and the warrant issued, on October 27. No application for a warrant was made on November 12, and the justice did not then receive or act upon an application for a jury. All that he assumed to do on that day was to change the time when the jury were to be empanelled. This may have been technically issuing a new warrant, because it made a material change, but it was not receiving and acting on an application for a warrant, and it appears as a fact that there was no finding on that day that the delay to appeal was caused by accident or mistake. Without this finding, there could be no appeal, and no warrant for a jury. The facts, then, show that there had been no valid act of the justice before November 12, and that, if he issued a warrant on that day, he did it without the preliminary finding necessary to its validity.

If it be said, that, if the warrant should be amended and made to appear to have been issued on November 12, it would then show that the finding was made on that day, the answer is, that that would be sufficient reason for not allowing an amendment which would be contrary to the truth and make the record a false one. In fact, the warrant was not issued on November 12, and the justice did not intend that it should be taken as issued on that day. In law, for some purposes, it may be so regarded, but not to the effect of dispensing with a finding necessary to the jurisdiction.

Without considering, then, whether fractions of a day can be regarded in this matter, and whether the justice had authority to act on the day on which the term of the court began, but at an hour before it was actually in session, we think that the proceedings can derive no validity from the change made in the warrant on that day. Verdict set aside.