Dewey, J.
This is a petition for a certiorari to the county commissioners of this county. The ground of the application is an alleged irregularity in the proceedings of the county commissioners, in establishing and locating a certain road in the town of Monterey. The leading objection taken to these proceedings, in the argument in support of the motion for a certiorari, is the want of jurisdiction on the part of the county commissioners to act in this matter. The jurisdiction assumed by them was wholly an appellate,' and not an original jurisdiction.
It was urged by the counsel for the petitioners, that this road was of such a character as made it a public highway, so far as to require it to be laid out by the county commissioners only upon an original application to them, and not by appeal from the action of the board of selectmen, refusing to lay out the road. This leads us to consider the jurisdiction of county commissioners, in relation to roads, both as to original jurisdiction, and on appeal from the refusal of selectmen ; and the authority of selectmen in relation to town ways. The original jurisdiction, as to establishing ways, is vested in the county commissioners by the Rev. Sts. c. 24, § 1, which gives them the power to lay out public highways, or county roads, as they are sometimes called, in distinction from town ways, though such public ways may be either roads leading from town to town, or from place to place, within the same town. In either case, the county commissioners have original jurisdiction. By the Rev. Sts. c. 24, § 66, it is also pro vided, that the selectmen of the several towns may lay out town ways “ for the use of their respective towns.”
It is quite obvious, that the distinctive character of a road [400]*400as a town way, or a public highway, must, to some extent, be indicated by the manner of its creation, or the power which gives it a legal existence. As already stated, the county commissioners have not only authority to lay out highways from town to town, that is, passing through various towns, but also highways, the termini of which are exclusively within the same town. Hence, to some extent, local roads may be either town ways, or public highways. So also a town road may be a road of great public travel, from its connection with other roads. The only criterion, therefore, for distinguishing between these different species of roads, is to ascertain whether the proceedings for their location originated with the selectmen, or with the county commissioners. If with the former, they must be town ways, as the jurisdiction of the selectmen is confined to such ways.
The power vested by the statute in these two tribunals is essentially different. The authority vested in the selectmen is a more restricted power, and one limited to roads having (heir termini within the town. With this limitation, the selectmen are authorized, in their discretion, to locate any road within their respective towns, for the use of the inhabitants. They are to act in the matter according to their own judgment, subject only to the restriction just named, and the approval of the town, if the selectmen decide in favor of such a location; and the county commissioners, in case, of unreasonable neglect or refusal of the selectmen to lay out a way, or of the town to accept the same, have the like discretion and power to adjudicate, on an appeal to them, as to the road being one required for the convenience of the inhabitants of the town in which it is to be located.
It by no means follows, from the limitation of town ways to ways for the use of their respective towns, that such a way may not be used as a link in a chain of continuous roads of great public travel. The convenience of the inhabitants of the 'town may require the establishment of the road because of its direct connection with some great thoroughfare; and when thus established, it is open to the use of the public generally, as well the inhabitants of other towns as those of [401]*401the town in which it is situated. The legislature has vested this power to lay out roads in these tribunals, and has seen fit and proper to clothe them with discretionary powers of a somewhat extended character, and such as we have neither the power nor the disposition to interfere with.
The inquiry is then, whether, upon the facts stated in the present case, the county commissioners have exceeded their jurisdiction; and this, it will be perceived, depends upon the decision of another question, namely, whether the application to the selectmen of Monterey, to lay out and establish this road, was one cognizable by the selectmen. The action of the county commissioners was not upon an original application, but under the appellate power given in Rev. Sts. c. 24, § 71. It is not enough, therefore, for the respondents to show that the county commissioners might have original jurisdiction of the matter of laying out this road. The petitioners for the same elected to apply to the selectmen to lay out the road as a town road, and it is only as such town road that the county commissioners have established it. If, therefore, this was not a road that could be legally laid out by the selectmen of Monterey, the whole proceeding was irregular, and ought to be quashed.
Does the application to the selectmen indicate a road of such a character as was beyond the scope of the authority of the selectmen to lay out? In the petition, it is called a town road, and is described as commencing “ not far from a stone bridge, east of the dwelling-house of Egbert B. Garfield, thence down the stream to the line of New Marlborough.” In the location by the commissioners, it is described as a town way, beginning at a certain point, “ within the town of Monterey, and terminating at a stake on the line dividing Monterey from New Marlborough.” There is nothing on the face of this location, or in the petition for laying out the road, that implies that it is to be a road from town to town, in the sense that would require an original application to the county commissioners to lay out the same; it is wholly within the territorial limits of Monterey ; and, so far as is apparent on the record, might be properly located as a town roacL
[402]*402But the petitioners for a certiorari now urge that, in point of fact, the road was required principally for the use of others than the inhabitants of Monterey. That, however, was a question exclusively for the county commissioners; and we should be slow to interfere with the doings of inferior tribunals, in a case where the question before them is one exclusively within then discretion and judgment, as to the convenience or necessity of the road. They are the tribunal, constituted by law, to decide whether the road is wanted for the use of the inhabitants of Monterey; and having proceeded to establish and locate this road, as a town road, upon an appeal from the selectmen, they must have found that fact. This objection cannot therefore avail the petitioners.
It is then further objected, that these proceedings ought to be quashed, because the first order of the commissioners for constructing the road was objectionable, inasmuch as the order was rendered a nugatory one, as to the time fixed for its construction, by further requiring the town of 'Monterey to postpone the time of the commencement of the work, until the period had elapsed for calling out a jury.
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Dewey, J.
This is a petition for a certiorari to the county commissioners of this county. The ground of the application is an alleged irregularity in the proceedings of the county commissioners, in establishing and locating a certain road in the town of Monterey. The leading objection taken to these proceedings, in the argument in support of the motion for a certiorari, is the want of jurisdiction on the part of the county commissioners to act in this matter. The jurisdiction assumed by them was wholly an appellate,' and not an original jurisdiction.
It was urged by the counsel for the petitioners, that this road was of such a character as made it a public highway, so far as to require it to be laid out by the county commissioners only upon an original application to them, and not by appeal from the action of the board of selectmen, refusing to lay out the road. This leads us to consider the jurisdiction of county commissioners, in relation to roads, both as to original jurisdiction, and on appeal from the refusal of selectmen ; and the authority of selectmen in relation to town ways. The original jurisdiction, as to establishing ways, is vested in the county commissioners by the Rev. Sts. c. 24, § 1, which gives them the power to lay out public highways, or county roads, as they are sometimes called, in distinction from town ways, though such public ways may be either roads leading from town to town, or from place to place, within the same town. In either case, the county commissioners have original jurisdiction. By the Rev. Sts. c. 24, § 66, it is also pro vided, that the selectmen of the several towns may lay out town ways “ for the use of their respective towns.”
It is quite obvious, that the distinctive character of a road [400]*400as a town way, or a public highway, must, to some extent, be indicated by the manner of its creation, or the power which gives it a legal existence. As already stated, the county commissioners have not only authority to lay out highways from town to town, that is, passing through various towns, but also highways, the termini of which are exclusively within the same town. Hence, to some extent, local roads may be either town ways, or public highways. So also a town road may be a road of great public travel, from its connection with other roads. The only criterion, therefore, for distinguishing between these different species of roads, is to ascertain whether the proceedings for their location originated with the selectmen, or with the county commissioners. If with the former, they must be town ways, as the jurisdiction of the selectmen is confined to such ways.
The power vested by the statute in these two tribunals is essentially different. The authority vested in the selectmen is a more restricted power, and one limited to roads having (heir termini within the town. With this limitation, the selectmen are authorized, in their discretion, to locate any road within their respective towns, for the use of the inhabitants. They are to act in the matter according to their own judgment, subject only to the restriction just named, and the approval of the town, if the selectmen decide in favor of such a location; and the county commissioners, in case, of unreasonable neglect or refusal of the selectmen to lay out a way, or of the town to accept the same, have the like discretion and power to adjudicate, on an appeal to them, as to the road being one required for the convenience of the inhabitants of the town in which it is to be located.
It by no means follows, from the limitation of town ways to ways for the use of their respective towns, that such a way may not be used as a link in a chain of continuous roads of great public travel. The convenience of the inhabitants of the 'town may require the establishment of the road because of its direct connection with some great thoroughfare; and when thus established, it is open to the use of the public generally, as well the inhabitants of other towns as those of [401]*401the town in which it is situated. The legislature has vested this power to lay out roads in these tribunals, and has seen fit and proper to clothe them with discretionary powers of a somewhat extended character, and such as we have neither the power nor the disposition to interfere with.
The inquiry is then, whether, upon the facts stated in the present case, the county commissioners have exceeded their jurisdiction; and this, it will be perceived, depends upon the decision of another question, namely, whether the application to the selectmen of Monterey, to lay out and establish this road, was one cognizable by the selectmen. The action of the county commissioners was not upon an original application, but under the appellate power given in Rev. Sts. c. 24, § 71. It is not enough, therefore, for the respondents to show that the county commissioners might have original jurisdiction of the matter of laying out this road. The petitioners for the same elected to apply to the selectmen to lay out the road as a town road, and it is only as such town road that the county commissioners have established it. If, therefore, this was not a road that could be legally laid out by the selectmen of Monterey, the whole proceeding was irregular, and ought to be quashed.
Does the application to the selectmen indicate a road of such a character as was beyond the scope of the authority of the selectmen to lay out? In the petition, it is called a town road, and is described as commencing “ not far from a stone bridge, east of the dwelling-house of Egbert B. Garfield, thence down the stream to the line of New Marlborough.” In the location by the commissioners, it is described as a town way, beginning at a certain point, “ within the town of Monterey, and terminating at a stake on the line dividing Monterey from New Marlborough.” There is nothing on the face of this location, or in the petition for laying out the road, that implies that it is to be a road from town to town, in the sense that would require an original application to the county commissioners to lay out the same; it is wholly within the territorial limits of Monterey ; and, so far as is apparent on the record, might be properly located as a town roacL
[402]*402But the petitioners for a certiorari now urge that, in point of fact, the road was required principally for the use of others than the inhabitants of Monterey. That, however, was a question exclusively for the county commissioners; and we should be slow to interfere with the doings of inferior tribunals, in a case where the question before them is one exclusively within then discretion and judgment, as to the convenience or necessity of the road. They are the tribunal, constituted by law, to decide whether the road is wanted for the use of the inhabitants of Monterey; and having proceeded to establish and locate this road, as a town road, upon an appeal from the selectmen, they must have found that fact. This objection cannot therefore avail the petitioners.
It is then further objected, that these proceedings ought to be quashed, because the first order of the commissioners for constructing the road was objectionable, inasmuch as the order was rendered a nugatory one, as to the time fixed for its construction, by further requiring the town of 'Monterey to postpone the time of the commencement of the work, until the period had elapsed for calling out a jury. However fatal this objection might be, as respects the first order for the construction of the road, it is now entii'ely immaterial, as the commissioners subsequently, in May, 1850, made a new order for the same to be completed by the 1st of September, 1850, and this order was free from any restriction. This properly imposed the duty upon Monterey to make the road, and removes all further difficulty as to the first order, unless an objection taken to the second order is fatal to that order. It is objected, that it recites the adjudication establishing the road as adopted, “January, 1848,” whereas it was adopted, “January, 1849.” This was a mere clerical error, and, unless the petitioners were misled thereby, cannot avail them. That they really understood the order, must be apparent from their connection with the subject, during the various proceedings thereon, as well as from the other parts of the recital, stating the road to be the same that was laid out on the petition of Egbert B. Garfield. In our opinion, this defect is no sufficient ground for quashing these proceedings.
[403]*403It is next objected, that Seth Norton, one of the commissioners acting in the laying out and establishing of this road, was interested, by reason of his being an inhabitant of New Marlborough. But this road was wholly within the limits of Monterey, and therefore no such objection exists for this cause. The fact, that the road extended to the line of New Marlborough, did not render Norton incompetent to act in the case, and require a special commissioner to be substituted in his place.
A question was also raised at the argument, as to a supposed defect in the original petition to the county commissioners. This was not assigned in the application for the certiorari, as a cause for granting the same. The defect now suggested is the omission of the word “unreasonably” in the representation to the county commissioners, that the selectmen of Monterey had neglected and refused to lay out the town way asked for by Egbert B. Garfield and others. It is true, that the statute only authorizes an appeal to the county commissioners, when “the selectmen shall have unreasonably neglected or refused to lay out” the road. But no particular form of application to the county commissioners is prescribed by the statute. The fact, that the selectmen have unreasonably neglected or refused, must be made to appear to the county commissioners; and, in the present case, it is directly found, and so stated in their adjudication establishing the road. The town of Monterey also appeared, and were heard before the commissioners on the case, without taking this objection. This obviated all substantial objection, and makes the objection one of mere form. But nothing save substantial errors, and such as would work manifest injustice, if not corrected, will be regarded in an application for a certiorari.
Another ground stated as a reason for issuing the certiorari is, that the county commissioners have disregarded the provision of the act of 1848, c. 192, requiring them to erect stone bounds, or, if this is impracticable, certain other prescribed monuments, at the termini and angles of all roads thereafter laid out by them. Various reasons may be given, why this ground cannot avail the petitioners: 1st. The provision in [404]*404question is merely directory, and does not enter into the essential elements of a good location of a highway. 2d. It is not required that the records should show the creation of such bounds or monuments; and, therefore, if a writ were to issue, and the records were to be brought before us, the omission of any recital of such acts in the record, would not invalidate the location of the road. 3d. These acts are more properly acts to be done after the road is finally located, and hence would not be stated as done, at the time when the record is made up of the original establishment and location of the road.
None of these grounds being sufficient to sustain this petition, it must be dismissed.