The opinion of the Court was pronounced by
Williams, J.
This is an application by the town of Royalton, for a certiorari to be directed to the clerk of the late board of road commissioners in the County of Windsor to certify their doings in laying out a certain road and ordering the building of a bridge thereon, on the petition of Jacob Fox et al. Notice that such an application would be made has been given to Mr. Fox. As the Court always exercises a discretionary power in issuing this writ the party applying must set forth by affidavit such facts as shew that it is proper and expedient that .the writ should issue. It is said in England, that the writ is issued as a matter of course on the application of the Crown, but otherwise on the application of the defendant. ’ 2 Term Rep. 89.
In the case of Lees vs. Childs, 17 Mass. 351, the Court refused to grant the writ, because the applicants had failed to show that injustice had been done by the proceedings in the inferior tribunal; and in the case of ex parte Weston & al. 11 Mass. 417, it was remarked by the Court that before granting a certiorari they will always look into the record and even into the circumstances attending the process, because when the record is actually returned in obedience to the writ of certiorari they are bound to quash the whole proceeding if error should appear. When the error or ir[460]*460regularity complained of is merely in the forms of proceeding and no injustice has been done, or when from any other cause it would be a greater injury to quash the proceedings of the inferior tribunals than to have them remain, the Court in the exercise of their sound discretion will refuse the writ. The King vs. Bass, 5 Term 251; Ex parte Jed. Miller, 4 Mass. 565.
This application is founded on the affidavit of Mr. Colla-mer, who states, the proceedings both of the road commissioners and of the committee appointed by the County Court on appeal from the decision of the commissioners. By this affidavit it appears that the board of commissioners on the 18th day of November 1831, made an order on the town of Royalton, to build a bridge in a place directed in the order of a certain description and plan described the order, with a double trussell in the river. An appeal was taken from the decision of the road commissioners and a committee appointed, who on the 7th of August met to attend to the business of their appointment. The town of Royalton were heard before the committee, introduced evidence tending to shew the impracticability of sustaining a permanent bridge of the plan and description ordered, insisted that the committee must affirm or reverse the whole order, and requested that they would state their decision and the grounds of it, in writing. The committee made an order and adjudication in the following words. “ That the said decision of the said road commissioners be affirmed with respect to the erecting and building a good and permanent bridge across said White River, in the place where the last bridge stood, near Jacob Fox’s tavern house.”— They then proceeded to recommend to the town to build the bridge of another form than the one ordered by the commissioners, and without any trussel, in the river. It will be noticed here that they neither affirm or reverse the decision of the commissioners. By the Statute in relation to roads and bridges passed in 1830 (sec. 30) it was made the duty of the road commissioners when they ordered a bridge to be built, to determine not only as to the time when the bridge was to be built, but also, the kind of bridge to be built, and it appears that this was done by the commissioners. On an appeal a committee were to [461]*461be appointed by the County Court, who were to' give' notice to the parties to visit the petitioners and the town, ■make personal inspection of the premises, and reverse or nffirm the order of the commissioners. This committee Were not authorised to lay out a new road or direct the building of a bridge at a different place at a different time or of a different ibrnfor kind from the one laid oift oí ordered by the commissioners. Their power and their' only power was to reverse or affirm the decision of the commissioners, and they could not reverse it unless all three of the committee were agreed therein. It was evidently therefore, the duty of the committee, if they were not agreed in reversing the order of the commissioners to affirm the same; and if they were unanimous in believing that the order of the commissioners was erroneous, and that it was impracticable or inexpedient for the town to build or maintain a bridge of the form or kind ordered by the commissioners, to reverse their decision, leaving the petitioners to take such further steps as should be thought best. The position that was taken by the town of Royal-ton in the hearing before the committed, was undoubtedly eorrect, to wit, that it was the duty df the Committee to affirm or reverse the whole order of the commissioners, and that if the committee were convinced of the impracticability of sustaining there a bridge of the description ordered they should reverse the said order. If the committee had affirmed the order of the commissioners, and then added the recommendation to build the bridge of another form and without trussels, there might have been some foundation for the argument which has been urged, that this recommendation should be treated as mere surplusage. Though it would have appeared somewhat singular if the committee had affirmed an order, a compliance with which if it could have heen enforced at all by the provisions of any existing law, must have been by indictment against the town for not performing the order, and yet recommend to the town not to perform the order, or in other words not to build the bridge of the kind ordered, but of a different kind. In this case the committee have not affirmed the decision of the commissioners. They coincido with the commissioners in opinion that it was proper and necessa[462]*462ry to erect a permanent bridge at the place described, but disagree with them as to the kind of bridge to be built, " and neither affirm or reverse the decision of the commissioners. For the reason above, the whole proceedings should be set aside. It is not necessary for us to say what would have been the situation of the proceedings of the commissioners after an appeal, if the committee had not been called out, whether the proceedings of the commissioners would not be considered as established unless the party appealing call out the committee, inasmuch as we are of opinion that when the committee are called out and do make inspection, they must make a decision in the premises or the whole proceedings should be set aside.— A town appealing is entitled to a decision from the committee affirming the border of the commissioners before they are subject to any expense about making a road or building a bridge.
There is also another ground on which the Court would have granted this certiorari. The law under which those proceedings were had was repealed at the session of the Legislature in 1831, and the board of commissioners as such ceased to exist. I can see no way in which the order of the board of commissioners for building or erecting a bridge, where there was none before could be enforced, except by the commissioners themselves issuing an extent against the town to collect such sum as they order for that purpose, and by expending the same in making a bridge under the superintendance of a committee appointed for that purpose.
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The opinion of the Court was pronounced by
Williams, J.
This is an application by the town of Royalton, for a certiorari to be directed to the clerk of the late board of road commissioners in the County of Windsor to certify their doings in laying out a certain road and ordering the building of a bridge thereon, on the petition of Jacob Fox et al. Notice that such an application would be made has been given to Mr. Fox. As the Court always exercises a discretionary power in issuing this writ the party applying must set forth by affidavit such facts as shew that it is proper and expedient that .the writ should issue. It is said in England, that the writ is issued as a matter of course on the application of the Crown, but otherwise on the application of the defendant. ’ 2 Term Rep. 89.
In the case of Lees vs. Childs, 17 Mass. 351, the Court refused to grant the writ, because the applicants had failed to show that injustice had been done by the proceedings in the inferior tribunal; and in the case of ex parte Weston & al. 11 Mass. 417, it was remarked by the Court that before granting a certiorari they will always look into the record and even into the circumstances attending the process, because when the record is actually returned in obedience to the writ of certiorari they are bound to quash the whole proceeding if error should appear. When the error or ir[460]*460regularity complained of is merely in the forms of proceeding and no injustice has been done, or when from any other cause it would be a greater injury to quash the proceedings of the inferior tribunals than to have them remain, the Court in the exercise of their sound discretion will refuse the writ. The King vs. Bass, 5 Term 251; Ex parte Jed. Miller, 4 Mass. 565.
This application is founded on the affidavit of Mr. Colla-mer, who states, the proceedings both of the road commissioners and of the committee appointed by the County Court on appeal from the decision of the commissioners. By this affidavit it appears that the board of commissioners on the 18th day of November 1831, made an order on the town of Royalton, to build a bridge in a place directed in the order of a certain description and plan described the order, with a double trussell in the river. An appeal was taken from the decision of the road commissioners and a committee appointed, who on the 7th of August met to attend to the business of their appointment. The town of Royalton were heard before the committee, introduced evidence tending to shew the impracticability of sustaining a permanent bridge of the plan and description ordered, insisted that the committee must affirm or reverse the whole order, and requested that they would state their decision and the grounds of it, in writing. The committee made an order and adjudication in the following words. “ That the said decision of the said road commissioners be affirmed with respect to the erecting and building a good and permanent bridge across said White River, in the place where the last bridge stood, near Jacob Fox’s tavern house.”— They then proceeded to recommend to the town to build the bridge of another form than the one ordered by the commissioners, and without any trussel, in the river. It will be noticed here that they neither affirm or reverse the decision of the commissioners. By the Statute in relation to roads and bridges passed in 1830 (sec. 30) it was made the duty of the road commissioners when they ordered a bridge to be built, to determine not only as to the time when the bridge was to be built, but also, the kind of bridge to be built, and it appears that this was done by the commissioners. On an appeal a committee were to [461]*461be appointed by the County Court, who were to' give' notice to the parties to visit the petitioners and the town, ■make personal inspection of the premises, and reverse or nffirm the order of the commissioners. This committee Were not authorised to lay out a new road or direct the building of a bridge at a different place at a different time or of a different ibrnfor kind from the one laid oift oí ordered by the commissioners. Their power and their' only power was to reverse or affirm the decision of the commissioners, and they could not reverse it unless all three of the committee were agreed therein. It was evidently therefore, the duty of the committee, if they were not agreed in reversing the order of the commissioners to affirm the same; and if they were unanimous in believing that the order of the commissioners was erroneous, and that it was impracticable or inexpedient for the town to build or maintain a bridge of the form or kind ordered by the commissioners, to reverse their decision, leaving the petitioners to take such further steps as should be thought best. The position that was taken by the town of Royal-ton in the hearing before the committed, was undoubtedly eorrect, to wit, that it was the duty df the Committee to affirm or reverse the whole order of the commissioners, and that if the committee were convinced of the impracticability of sustaining there a bridge of the description ordered they should reverse the said order. If the committee had affirmed the order of the commissioners, and then added the recommendation to build the bridge of another form and without trussels, there might have been some foundation for the argument which has been urged, that this recommendation should be treated as mere surplusage. Though it would have appeared somewhat singular if the committee had affirmed an order, a compliance with which if it could have heen enforced at all by the provisions of any existing law, must have been by indictment against the town for not performing the order, and yet recommend to the town not to perform the order, or in other words not to build the bridge of the kind ordered, but of a different kind. In this case the committee have not affirmed the decision of the commissioners. They coincido with the commissioners in opinion that it was proper and necessa[462]*462ry to erect a permanent bridge at the place described, but disagree with them as to the kind of bridge to be built, " and neither affirm or reverse the decision of the commissioners. For the reason above, the whole proceedings should be set aside. It is not necessary for us to say what would have been the situation of the proceedings of the commissioners after an appeal, if the committee had not been called out, whether the proceedings of the commissioners would not be considered as established unless the party appealing call out the committee, inasmuch as we are of opinion that when the committee are called out and do make inspection, they must make a decision in the premises or the whole proceedings should be set aside.— A town appealing is entitled to a decision from the committee affirming the border of the commissioners before they are subject to any expense about making a road or building a bridge.
There is also another ground on which the Court would have granted this certiorari. The law under which those proceedings were had was repealed at the session of the Legislature in 1831, and the board of commissioners as such ceased to exist. I can see no way in which the order of the board of commissioners for building or erecting a bridge, where there was none before could be enforced, except by the commissioners themselves issuing an extent against the town to collect such sum as they order for that purpose, and by expending the same in making a bridge under the superintendance of a committee appointed for that purpose.
At the time the committee were called out there was no board of commissioners in existence to issue such extent, and of course they could not complete their proceedings. The Statute of 1806, which was the only statute in existence relating to building bridges, authorises the County Court on petition to appoint a committee and on their report to make order for the building a bridge if they think proper. This statute gives to such committee the power of determining on the expediency of erecting such bridge, and is wholly an original proceeding. Such a committee may still be asked for, and appointed, and the establishment of this bridge by the road commissioners [463]*463would have no effect upon their proceedings and would be wholly inoperative, as the road commissioners could not complete their proceedings and no tribunal has been erected to ca'rry them into effect.
This would of itself be a sufficient reason for issuing a cer-tiorari and quashing proceedings which cannot be completed. The Court think this a proper case for them in the exercise of their discretionary power to award that a writ of certiorari issue, and it is accordingly ordered that such writ issue. The writ was issued, the parties consented to a return instanter, and thereupon the proceedings of the road commissioners and the committee were set aside.
[The Legislature' have since, by an act passed November 8th, 1832, made provision that the clerks of the County Court may issue extents and grant executions in the same manner that the clerk of the commissioners could have done if they had been continued in office.]