The opinion of the Court was by
Whitman C. J.
The petitioners complain of certain irregularities, which they allege to have taken place in the location of a highway through the town of Cushing; and claim on account thereof, to have the proceedings of the County Commissioners reversed.
Writs of certiorari, it has been held, are grantable only at the discretion of the Court, and are not allowed í: ex debito justitiee..” Discretion however, when exercised by a court, [12]*12does not mean precisely what the word in common parlance, may seem to import. A legal direction is implied; a discretion to be exercised according to the rules of law. If the rights of a party have been infringed to his detriment, by the erroneous doings of an inferior tribunal, he may justly claim redress ; and it will be the duty of a court to afford it to him. It is not the province of the Court to undertake to presume, that it would be wiser for him to submit to the injury, or to conjecture that the public interest would be better promoted by an adjudication against him, and therefore that it would not be discreet to relieve him. If the petitioners are aggrieved by a proceeding clearly erroneous, and to their injury, they must not be denied a remedy. But if the error is merely in matter of form, and the exception purely technical, it would be no violation of their essential rights, if the Court should withhold its interference. Again, if the error complained of exists, yet, if it in nowise operates to the injury of the party seeking a remedy, although it may be otherwise to some person who does not complain, the Court may, in such case, with entire propriety, and in the exercise of a sound and legal discretion, refuse its aid.
The first error complained of is, that the termini of the road, as laid out, are not the same as designated in the petition. This does not appear of record. For aught the Court can know they may be identical. The Commissioners may have given names to the termini different from those contained in the petition, and yet they may be, to a common intent the same. The petition was. for a road from the house of Thomas Jameson to the house of Rufus Copeland. No one would understand, when a public highway is prayed for, with such a description, that the two ends of the road were to butt against those two dwellinghouses. It would be obvious that it was near to those houses, which must be understood to have been in the contemplation of the petitioners. In laying out the road the Commissioners must necessarily bo more precise, and designate monuments exactly at the termini of the road. These might be of their own erection. The termini of the [13]*13road in this case, are described by the Commissioners as being, at one end, at the junction of two roads, one of which went to Rufus Copeland’s barn ; and, at the other, at the guide board at Wentworth’s corner, in Cushing. These termini we may presume, in the absence of proof to the contrary, were substantially identical with those named in the petition.
It is next objected that the Commissioners did not make return of their doings at the term next after the performance of the service. The statute (1832, c. 42,) provides that “they shall make a correct return of their doings, under their hands, with an actual plan or description of said highway or common road, so laid out, altered or discontinued, to the regular session of said County Commissioners’ Court, held next after such proceedings shall have been had and finished.” The Commissioners returned, that they had, on the twenty-fourth of July, 1833, met and heard the parties, and viewed the route for the highway ; and having adjudged it to be of convenience and necessity, had laid it out. In this recital they speak in the past tense. The statute, it will be perceived, requires “ that they shall make a correct return of their doings, with an accurate plan or description of said highway.” Precisely when this part of the service was performed, does not appear. It was after the said twenty-fourth of July, as they speak of their doings then in the past tense. Time was doubtless requisite to prepare an accurate return and plan, subsequently to the view and laying out; and these might not have been “ finished” until after the term next following the location of the road; and until finished, could not have been presented or recorded. We cannot regard it, therefore, as apparent, that the report and plan were “ finished,” and in readiness to become a matter of record, earlier than the term at which it was presented.
Again, it is said that the return does not name some of the persons, over whose land the road passes, and that this is an error; and the Court so decided in Commonwealth v. Great Barrington, 6 Mass. R. 492. But the statute does not, in terms, require any thing of the kind. It requires that dam[14]*14ages shall be awarded to such as may sustain any; and this the Commissioners, naming the individuals, and specifying the amount of damage in each case, say they have done ; and it is not very clearly apparent to us how it can be essential “ that they should have designated by name the other individuals, over whose land the road passes. Why the return, that no other individuals had sustained damage, should not be sufficient, we do not readily perceive. The reason assigned for the decision is, that the individuals are entitled to a process, in the nature of an appeal from the decision of the County Commissioners. But how are they abridged of this right by not being individually named in the return ? The statute does not make their right to such process dependent upon their being so named. The decision, however, took place upon the return of a writ of certiorari. When a certiorari is allowed. and returned, such errors as are apparent in the record, must be allowed to avail the plaintiff therein. And there was in that case a more palpable error, which might well have occasioned the granting of the certiorari. The case before us is an application for such a writ. And it is proper that we should inquire whether the petitioners are aggrieved by the error complained of. The individuals, it seems, whose interests were directly involved,, have rested contentedly for eight or ten years, without complaint. And how can the interest of the petitioners be affected by the omission ? If they cannot be affected by it, why should we, in the exercise of a sound discretion, allow them, by the process prayed for, to place us in a situation in which we might be compelled, without looking to see whether they were interested or not, to quash the proceedings of the County Commissioners.
It is still objected, that the County Commissioners had not taken certain preliminary steps, without which they could not legally have proceeded to lay out the road. The provisions upon which this objection is founded, are contained in the 1st and 5th sections of the act of 1832, c. 42. The first section provides, that “ said Commissioners, or a majority of them, upon receiving satisfactory evidence, that the petitioners are [15]*15responsible, and that they ought to be heard touching the matter set forth in their petition, shall proceed to view,” &c.
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The opinion of the Court was by
Whitman C. J.
The petitioners complain of certain irregularities, which they allege to have taken place in the location of a highway through the town of Cushing; and claim on account thereof, to have the proceedings of the County Commissioners reversed.
Writs of certiorari, it has been held, are grantable only at the discretion of the Court, and are not allowed í: ex debito justitiee..” Discretion however, when exercised by a court, [12]*12does not mean precisely what the word in common parlance, may seem to import. A legal direction is implied; a discretion to be exercised according to the rules of law. If the rights of a party have been infringed to his detriment, by the erroneous doings of an inferior tribunal, he may justly claim redress ; and it will be the duty of a court to afford it to him. It is not the province of the Court to undertake to presume, that it would be wiser for him to submit to the injury, or to conjecture that the public interest would be better promoted by an adjudication against him, and therefore that it would not be discreet to relieve him. If the petitioners are aggrieved by a proceeding clearly erroneous, and to their injury, they must not be denied a remedy. But if the error is merely in matter of form, and the exception purely technical, it would be no violation of their essential rights, if the Court should withhold its interference. Again, if the error complained of exists, yet, if it in nowise operates to the injury of the party seeking a remedy, although it may be otherwise to some person who does not complain, the Court may, in such case, with entire propriety, and in the exercise of a sound and legal discretion, refuse its aid.
The first error complained of is, that the termini of the road, as laid out, are not the same as designated in the petition. This does not appear of record. For aught the Court can know they may be identical. The Commissioners may have given names to the termini different from those contained in the petition, and yet they may be, to a common intent the same. The petition was. for a road from the house of Thomas Jameson to the house of Rufus Copeland. No one would understand, when a public highway is prayed for, with such a description, that the two ends of the road were to butt against those two dwellinghouses. It would be obvious that it was near to those houses, which must be understood to have been in the contemplation of the petitioners. In laying out the road the Commissioners must necessarily bo more precise, and designate monuments exactly at the termini of the road. These might be of their own erection. The termini of the [13]*13road in this case, are described by the Commissioners as being, at one end, at the junction of two roads, one of which went to Rufus Copeland’s barn ; and, at the other, at the guide board at Wentworth’s corner, in Cushing. These termini we may presume, in the absence of proof to the contrary, were substantially identical with those named in the petition.
It is next objected that the Commissioners did not make return of their doings at the term next after the performance of the service. The statute (1832, c. 42,) provides that “they shall make a correct return of their doings, under their hands, with an actual plan or description of said highway or common road, so laid out, altered or discontinued, to the regular session of said County Commissioners’ Court, held next after such proceedings shall have been had and finished.” The Commissioners returned, that they had, on the twenty-fourth of July, 1833, met and heard the parties, and viewed the route for the highway ; and having adjudged it to be of convenience and necessity, had laid it out. In this recital they speak in the past tense. The statute, it will be perceived, requires “ that they shall make a correct return of their doings, with an accurate plan or description of said highway.” Precisely when this part of the service was performed, does not appear. It was after the said twenty-fourth of July, as they speak of their doings then in the past tense. Time was doubtless requisite to prepare an accurate return and plan, subsequently to the view and laying out; and these might not have been “ finished” until after the term next following the location of the road; and until finished, could not have been presented or recorded. We cannot regard it, therefore, as apparent, that the report and plan were “ finished,” and in readiness to become a matter of record, earlier than the term at which it was presented.
Again, it is said that the return does not name some of the persons, over whose land the road passes, and that this is an error; and the Court so decided in Commonwealth v. Great Barrington, 6 Mass. R. 492. But the statute does not, in terms, require any thing of the kind. It requires that dam[14]*14ages shall be awarded to such as may sustain any; and this the Commissioners, naming the individuals, and specifying the amount of damage in each case, say they have done ; and it is not very clearly apparent to us how it can be essential “ that they should have designated by name the other individuals, over whose land the road passes. Why the return, that no other individuals had sustained damage, should not be sufficient, we do not readily perceive. The reason assigned for the decision is, that the individuals are entitled to a process, in the nature of an appeal from the decision of the County Commissioners. But how are they abridged of this right by not being individually named in the return ? The statute does not make their right to such process dependent upon their being so named. The decision, however, took place upon the return of a writ of certiorari. When a certiorari is allowed. and returned, such errors as are apparent in the record, must be allowed to avail the plaintiff therein. And there was in that case a more palpable error, which might well have occasioned the granting of the certiorari. The case before us is an application for such a writ. And it is proper that we should inquire whether the petitioners are aggrieved by the error complained of. The individuals, it seems, whose interests were directly involved,, have rested contentedly for eight or ten years, without complaint. And how can the interest of the petitioners be affected by the omission ? If they cannot be affected by it, why should we, in the exercise of a sound discretion, allow them, by the process prayed for, to place us in a situation in which we might be compelled, without looking to see whether they were interested or not, to quash the proceedings of the County Commissioners.
It is still objected, that the County Commissioners had not taken certain preliminary steps, without which they could not legally have proceeded to lay out the road. The provisions upon which this objection is founded, are contained in the 1st and 5th sections of the act of 1832, c. 42. The first section provides, that “ said Commissioners, or a majority of them, upon receiving satisfactory evidence, that the petitioners are [15]*15responsible, and that they ought to be heard touching the matter set forth in their petition, shall proceed to view,” &c. and the 5th section is, “ that whenever the County Commissioners shall decide against the prayer of any petition, they shall order the petitioners to pay into the county treasury all expenses incurred by the county by reason of said petition, and expenses incurred thereon, and, unless the same be paid within a reasonable time, shall issue their warrant of distress against said petitioners.” It is contended that it should appear of record, as preliminary to further proceedings, that the County Commissioners first adjudicated upon the ability of the petitioners to pay the expenses, which might become payable by them, as provided in said fifth section. But we regard the provision of the statute, in this particular as directory merely; and do not think, if such adjudication should not appear of record, that it would render the after proceedings void; and at any rate that it affords the petitioners no right to question the doings of the Commissioners in laying out the road.
The Commissioners are not affected in their pecuniary interests, otherwise than is every other citizen of the county, whether they inquire into the ability of the petitioners or not. They receive their compensation from the treasury iu any event.
But there remains still another objection ; and one attended undoubtedly with some difficulty. The statute requires the Commissioners, before proceeding to locate a road, to adjudge that it is of common convenience and necessity; and it has often been adjudged that the want of a preliminary adjudication, that the road prayed for is of common convenience or necessity, is fatal to the laying out of a highway. It is always safest, and advisable to follow the language of the statute in such cases. Omissions to do so are often productive of perplexity, and always attended with danger. In civil and remedial proceedings, however, it is not always necessary to do so. If language tantamount be used it may suffice. The Commissioners in this case adjudged the road to be of convenience and necessity, omitting the word common. Do the words [16]*16convenience and necessity here comprise the same meaning as if the word common were prefixed ? The County Commissioners have no power, (except in reference to applications in the nature of appeals from the refusal by a town or its selectmen to locate town or private ways,) to lay out or alter other than public highways. And when they do lay out a highway we may well suppose, that they must have considered it necessary that it should be done. And if it be necessary that it should be done, it must be because it will be of convenience to the public, that is, of common convenience. A road cannot be necessary without being a convenience.
Necessary seems to include convenience, and something more, viz. a convenience that is indispensable. Does the addition of the word common, to the word convenience, add to the meaning, beyond what the word necessary embraces ? If it must be a highway, which is to be laid out, and if it be necessary, it cannot be otherwise than of a common convenience. To speak of a public highway (and the Commissioners are authorized originally to locate none other,) without its being common, or of common convenience to every citizen, is almost, if not quite, an absurdity in terms. If, then, necessity requires the location of a highway, it must be both common and convenient. An elucidation upon this point may be derived from the fact, that, under the statutes of Massachusetts and of Maine, until 1832, instead of common convenience and necessity, the road prayed for was to be adjudged to be of common convenience or necessity; evidently using the words common convenience and the word necessity as convertible terms, and of equivalent import. We think, then, that adjudging the road to be of convenience and necessity is tantamount to adjudging it to be of common convenience and necessity; and that in this there was no error.
There are a number of facts, stated by the counsel for the petitioners, upon which he predicates a portion of his argument, which do not appear of record, and of which, from any legitimate source, the Court are wholly uninformed, and of course [17]*17the considerations suggested relative thereto, must be laid out of the case.
The result on the whole is, that the petition must be dismissed.