In the Matter of Mount Pleasant Avenue

10 R.I. 320

• Court: Supreme Court of Rhode Island
• Decided: October 6, 1872
• Status: Published

Opinion

Dttbeee, J.

The first section of the act under which this proceeding was had provides, that whenever the town council of either of the towns entitled to the benefits of the act “ shall adjudge it to be necessary to lay out, enlarge, straighten, or alter any street or highway, or any part thereof, in said town, it shall be lawful for said council to cause the same to be done in the manner following;” and the second section goes on to provide for an application to the Supreme Court for the appointment of commissioners of estimate and assessment, and to require notice thereof by publication, “ specifying the time and place of such application, and the nature and extent of the intended improvement.” In this case the town council of the town of North Providence, April 4, 1871, passed a resolution declaring “ that in the opinion of this town council it is desirable and necessary to lay out a new street from Chalkstone Road southerly to At-well’s Avenue, fifty feet wide,” and directing application to be made for the appointment of commissioners of estimate and assessment. The application directed was made after the publication of a notice simply reciting the resolution and specifying the time and place of the application. Under the application then made the commissioners were appointed who have made report, the validity of which is impugned by the objections taken by Mr. Adié. The first two exceptions relate to the action of the town council, and are, first, that there has been no proper adjudication of the town council that the highway or street, as reported by the commissioners, was or is necessary; and second, that no such notice as is required by statute was given of the application for the appointment of commissioners. We think the proceeding is liable to these objections. The town council simply adjudged that it was desirable and necessary to lay out a new street from Chalkstone Road southerly to Atwell’s Avenue, fifty feet wide, without any other specification of its locality. It is admitted that the Chalkstone Road and Atwell’s Avenue are two parallel highways in North Providence, having a length of nearly two miles in that town. The commissioners were therefore left to select the place of the proposed new street, as far as appears from the record, anywhere between the two roads within the space over which the two roads extend. We do not think the statute contains any indication that the right or duty of making such a selection was to be within the province of the commissioners. The second section of the statute requires that the notice there prescribed shall specify “ the nature and extent of the intended improvement,” thus importing that some specific street or highway had been adjudged necessary to be laid out, enlarged, straightened, or altered. The third section prescribes the duties of the commissioners and the manner in which they shall proceed. It contains no provision however for a selection by them of the-place of the improvement, but declares that they shall, “ after viewing the premises where such laying out, enlarging,, straightening, or other alterations are to be made, cause a survey and plat thereof to be made,” thus again importing that the locality of the improvement is designed to be decided upon and designated by the town council. It is urged in argument that the direction of the statute to the commissioners to cause a survey and plat to be made “ after viewing the premises,” furnishes air inference that the commissioners were to have some discretion, for otherwise, it is said, what use is to be subserved by the view. The language may be open to this inference; but even if the inference be a necessary one (which, however, we are not prepared to concede), it could only be held to justify a discretion exercisable within certain reasonable limits, designated by the town council, and would not justify a power of selection anywhere within an extent of nearly two miles. To allow this would be practically to allow the commissioners to adjudicate where the highway is to be located, which, certainly within some reasonable limits, is the most important thing to be known by the town council in order to enable it to adjudicate upon its necessity. We think, therefore, that on this ground the proceeding is open to objection. And if the proceeding is objectionable on this ground, it is also objectionable upon the ground that there was no sufficient notice of the application for the appointment of commissioners. That notice, as we have seen, was given simply in the language of the resolution, and, like the resolution, failed to specify the nature and extent of the intended improvement; in other words, it was too indeterminate to be a proper notice. We think, therefore, there being no claim that the exceptant has lost his right to take these objections by appearing and taking part in the appointment of the commission ers, that the exceptions must be sustained, and the proceeding vacated.

Other exceptions were taken, but the proceeding being vacated for these reasons, it becomes unnecessary to pass upon them. Exceptions sustained and proceedings vacated.