Appleton, C. J.
This is a bill in equity in and by which the complainants, selectmen of Dresden and acting in behalf of said town, seek to enjoin and prohibit the respondents, county commissioners of Lincoln county, “from issuing any warrant of distress” against the town of Dresden to collect money expended or to be expended in making a certain road particularly described therein, being a town road in said town. The ground upon which an injunction is claimed is that the county commissioners had no jurisdiction over the subject matter of their action and that their proceedings are null and void.
By K.-S., c. 18, § 23, “When the municipal officers unreasonably neglect or refuse to lay out or alter a town way or private way on petition of an inhabitant, or of an owner of land therein, for a way leading from such land under improvement to a town or highway,” the petitioners may, within .one year thereafter, present a petition stating the facts to the commissioners of the county at a regular session, who are to give notice thereof to all interested and act thereon as is provided respecting highways. When their decision is returned and recorded parties interested have the same right to appeal to the supreme judicial court and also to have their damages estimated by a committee or jury, as is provided in this chapter respecting highways.
The proceedings to which the bill relates are under § 23.
Assuming that there are very grave defects in the records produced — defects so important that on appeal or certiorari, the proceedings would be quashed, the question at once arises whether this is the proper process by which to procure such results. In other words, whether if this bill be not sustained, the inhabitants of Dresden “are in danger of suffering great wrong and irreparable injury” and that “they are without any adequate remedy by any common or ordinary process of law,” as the bill alleges.
1. The statute gives to any party aggrieved by the doings of the county commissioners the right of appeal to the supreme judicial court. The record shows that due notice was given of the time and place of the meeting of the county commissioners- “that all persons interested might then and there appear and show cause, [325]*325(if any they had) why the prayer of the said petitioners should not be granted.” The record then shows that “the county commissioners of Lincoln county met the parties at the time and place designated in said notice, and it appearing “that all the notices had been legally served and published” they “then proceeded with the parties to view the route prayed for and at a convenient place in the vicinity, heard said parties and their witnesses, and after a full hearing of all the facts, testimony and arguments by them presented,” adjudged and determined “that the prayer of the petitioners should be granted” and on December 31, 1872, the proceedings were closed.
These complainants represent one of the parties interested. They appeared before the county commissioners. They contested the laying out of the town road in question. They were beaten. They had the right of appeal. If there were jurisdictional defects, they would be open on appeal — and the proceedings would have been quashed had they been shown to exist. Instead of appealing these complainants remained quiescent until October 1877, when this bill was filed.
2. If the complainants neglected to appeal, still after the final close of proceedings, they had another remedy by certiorari. If there are important irregularities in the location of a road or in the assessment of taxes to build it, they can , only be taken advantage of by certiorari. Longfellow v. Quimby, 29 Maine, 196. Banks & als., appellants, 29 Maine, 288. When the county commissioners have rendered a judgment in a matter over which they have no jurisdiction, this court will none the less grant the writ of certiorari, even though no injustice has been done, the wrong in such case consisting in the assumption and exorcise of an authority not granted. Bangor v. County Commissioners, 30 Maine, 270. Levant v. County Commissioners, 67 Maine, 430. Whatever and however great the jurisdictional defects apparent of record, they may all be taken advantage of by this process and by this alone. Goodwin v. Hallowell, 12 Maine, 271.
It is apparent therefore that these complainants had ample remedies by the common and ordinary processes of law without resorting to a court of equity for relief.
[326]*326The validity of the doings of the county commissioners have been once before the court on petition for a writ of certiorari, and the decision then made must be deemed conclusive. If the questions relating to jurisdiction which are now presented were not raised It was the fault of these petitioners. Dresden v. County Commissioners, 62 Maine, 365. The objections now raised should have then been presented for adjudication. It is gross laches, that these complainants neglected to avail themselves of them in the incipient stages of the proceedings. If no other reasons existed for non-interference this would suffice.
3. "When the writ issues, the court can act only on the record as produced. No evidence aliunde is receivable. The record is conclusive, and if error exists the proceedings are quashed.
But the writ of certiorari is not of right. It is a writ grantable only at the sound discretion of the court. The petitioner must show that injustice has been done. It is not every error that will induce the court to permit the writ to issue. Upon the hearing of the petition for the writ evidence from without the record will be received to enable the court to determine upon the propriety of its issuing. Thus in State v. Pownal, 10 Maine, 24, the record being before the court, and it nowhere appearing that the selectmen of Pownal had unreasonably delayed or refused to lay out the road in question, the proceedings were quashed for this want of jurisdiction apparent of record. But upon petition, although the record fails to show that the selectmen unreasonably neglected or refused to lay out the road in question yet evidence will be received to prove that the county commissioners found the existence of this essential jurisdictional fact and they will be authorized to amend their record accordingly. Dresden v. County Commissioners, 62 Maine, 365. One of the grounds of complaint set forth in the complainant’s bill as negativing the jurisdiction of the county commissioners is the failure to state “that they (the selectmen of Dresden) had unreasonably refused to lay it (the road) out within one year from the date of the application to the county commissioners.” “But upon the hearing on the petition, evidence will be received to show that the application was made within one year as required by the statute and in that case the [327]*327writ for that cause will be denied.” West Bath, petrs., 36 Maine, 75. Another objection taken is that it does not appear of record “that some inhabitant of the town had applied to the municipal officers thereof, by petition to lay out the way.” If the petitioners in fact were inhabitants and that fact was shown on the petition, it would be a good ground for refusing to grant the writ. Indeed, “the want of the formal allegation of it in the petition to the commissioners could not be deemed fatal to the proceedings,” remarks Barrows, J., in Hebron v. County Commissioners, 63 Maine, 314.
Free access — add to your briefcase to read the full text and ask questions with AI
Appleton, C. J.
This is a bill in equity in and by which the complainants, selectmen of Dresden and acting in behalf of said town, seek to enjoin and prohibit the respondents, county commissioners of Lincoln county, “from issuing any warrant of distress” against the town of Dresden to collect money expended or to be expended in making a certain road particularly described therein, being a town road in said town. The ground upon which an injunction is claimed is that the county commissioners had no jurisdiction over the subject matter of their action and that their proceedings are null and void.
By K.-S., c. 18, § 23, “When the municipal officers unreasonably neglect or refuse to lay out or alter a town way or private way on petition of an inhabitant, or of an owner of land therein, for a way leading from such land under improvement to a town or highway,” the petitioners may, within .one year thereafter, present a petition stating the facts to the commissioners of the county at a regular session, who are to give notice thereof to all interested and act thereon as is provided respecting highways. When their decision is returned and recorded parties interested have the same right to appeal to the supreme judicial court and also to have their damages estimated by a committee or jury, as is provided in this chapter respecting highways.
The proceedings to which the bill relates are under § 23.
Assuming that there are very grave defects in the records produced — defects so important that on appeal or certiorari, the proceedings would be quashed, the question at once arises whether this is the proper process by which to procure such results. In other words, whether if this bill be not sustained, the inhabitants of Dresden “are in danger of suffering great wrong and irreparable injury” and that “they are without any adequate remedy by any common or ordinary process of law,” as the bill alleges.
1. The statute gives to any party aggrieved by the doings of the county commissioners the right of appeal to the supreme judicial court. The record shows that due notice was given of the time and place of the meeting of the county commissioners- “that all persons interested might then and there appear and show cause, [325]*325(if any they had) why the prayer of the said petitioners should not be granted.” The record then shows that “the county commissioners of Lincoln county met the parties at the time and place designated in said notice, and it appearing “that all the notices had been legally served and published” they “then proceeded with the parties to view the route prayed for and at a convenient place in the vicinity, heard said parties and their witnesses, and after a full hearing of all the facts, testimony and arguments by them presented,” adjudged and determined “that the prayer of the petitioners should be granted” and on December 31, 1872, the proceedings were closed.
These complainants represent one of the parties interested. They appeared before the county commissioners. They contested the laying out of the town road in question. They were beaten. They had the right of appeal. If there were jurisdictional defects, they would be open on appeal — and the proceedings would have been quashed had they been shown to exist. Instead of appealing these complainants remained quiescent until October 1877, when this bill was filed.
2. If the complainants neglected to appeal, still after the final close of proceedings, they had another remedy by certiorari. If there are important irregularities in the location of a road or in the assessment of taxes to build it, they can , only be taken advantage of by certiorari. Longfellow v. Quimby, 29 Maine, 196. Banks & als., appellants, 29 Maine, 288. When the county commissioners have rendered a judgment in a matter over which they have no jurisdiction, this court will none the less grant the writ of certiorari, even though no injustice has been done, the wrong in such case consisting in the assumption and exorcise of an authority not granted. Bangor v. County Commissioners, 30 Maine, 270. Levant v. County Commissioners, 67 Maine, 430. Whatever and however great the jurisdictional defects apparent of record, they may all be taken advantage of by this process and by this alone. Goodwin v. Hallowell, 12 Maine, 271.
It is apparent therefore that these complainants had ample remedies by the common and ordinary processes of law without resorting to a court of equity for relief.
[326]*326The validity of the doings of the county commissioners have been once before the court on petition for a writ of certiorari, and the decision then made must be deemed conclusive. If the questions relating to jurisdiction which are now presented were not raised It was the fault of these petitioners. Dresden v. County Commissioners, 62 Maine, 365. The objections now raised should have then been presented for adjudication. It is gross laches, that these complainants neglected to avail themselves of them in the incipient stages of the proceedings. If no other reasons existed for non-interference this would suffice.
3. "When the writ issues, the court can act only on the record as produced. No evidence aliunde is receivable. The record is conclusive, and if error exists the proceedings are quashed.
But the writ of certiorari is not of right. It is a writ grantable only at the sound discretion of the court. The petitioner must show that injustice has been done. It is not every error that will induce the court to permit the writ to issue. Upon the hearing of the petition for the writ evidence from without the record will be received to enable the court to determine upon the propriety of its issuing. Thus in State v. Pownal, 10 Maine, 24, the record being before the court, and it nowhere appearing that the selectmen of Pownal had unreasonably delayed or refused to lay out the road in question, the proceedings were quashed for this want of jurisdiction apparent of record. But upon petition, although the record fails to show that the selectmen unreasonably neglected or refused to lay out the road in question yet evidence will be received to prove that the county commissioners found the existence of this essential jurisdictional fact and they will be authorized to amend their record accordingly. Dresden v. County Commissioners, 62 Maine, 365. One of the grounds of complaint set forth in the complainant’s bill as negativing the jurisdiction of the county commissioners is the failure to state “that they (the selectmen of Dresden) had unreasonably refused to lay it (the road) out within one year from the date of the application to the county commissioners.” “But upon the hearing on the petition, evidence will be received to show that the application was made within one year as required by the statute and in that case the [327]*327writ for that cause will be denied.” West Bath, petrs., 36 Maine, 75. Another objection taken is that it does not appear of record “that some inhabitant of the town had applied to the municipal officers thereof, by petition to lay out the way.” If the petitioners in fact were inhabitants and that fact was shown on the petition, it would be a good ground for refusing to grant the writ. Indeed, “the want of the formal allegation of it in the petition to the commissioners could not be deemed fatal to the proceedings,” remarks Barrows, J., in Hebron v. County Commissioners, 63 Maine, 314. So the court will receive evidence to show that expenditures have been made, with the knowledge of the petitioners and in such case the writ in the exercise of discretion will not be granted. Noyes v. Springfield, 116 Mass. 87.
Without a further or more extended examination of the authorities it is manifest that the writ of certiorari will be denied, when it is shown on hearing of the petition for the writ that defects relating to the jurisdiction and which are apparent of record do not in fact exist and that evidence aliunde the record is receivable for that purpose as well as to show that injustice would follow the issuing of the writ.
4. But if a bill in equity is a process by which proceedings in road cases may be quashed, as the court can only act on the record it may quash proceedings when upon petition for certiorari, it would in the exercise of judicial discretion deny the issuing of the writ. Hence the conclusion of Shepley, C. J., in Baldwin v. Bangor, 36 Maine, 522. “A bill in equity,” he remarks, “is not the proper process to bring the proceedings of selectmen of towns, city councils or county commissioners, in laying out ways or streets, before this court to obtain a decision, whether they have been in all respects correct, formal, and in conformity to law. To entertain a bill for such a purpose would make a precedent for the transfer from this court, acting as a court of common law, of the purposes entrusted to it as the superintendent of all inferior tribunals, to be exercised by writs of error, certiorari or mandamus, or other proper process to the equity side of the court, to be exercised through the channel of a bill in equity.” So in Fiske v. Springfield, 116 Mass. 88, it was held that the validity of an [328]*328order of a city council, for the alteration of a highway and the payment of damages thereby could only be impeached directly by petition for a writ of certiorari and not collaterally by petition in equity to restrain the appropriation and payment of money under it.
5. The learned counsel for the complainants relies upon the case of Harriman v. County Commissioners of Waldo county, 53 Maine, 83, as an authority to sanction the maintenance of this bill. That was a writ of prohibition and mandamus. In that case a judgment had been rendered in this court upon the report of a committee appointed in case of an appeal from the decision of the county commissioners. The committee refused to lay out and establish the road prayed for. Notwithstanding their report was accepted and duly certified to the commissioners, they not only refused to carry the judgment of this court into effect, but in direct disobedience of its decree proceeded to appoint an agent to open the way they had laid out. They were enjoined by the court. But their action was a flagrant violation of law. This court has the power to issue writs of error, mandamus, prohibition, etc., by R. S., c. 77, § 4, for the furtherance of justice or “the execution of the laws.” The writ was issued by this court to compel obedience to its decrees, but it is no authority whatever for a bill like the one before us.
Injunction dissolved.
Barrows, Daneorth, ■ Peters, Libbey and Symonds, J J., concurred.