The exhibits annexed to the information show that prior to the passage of the resolution by the board of aldermen all the persons owning land abutting on said highway and having any interest in the land used for such highway petitioned the board of aldermen to abandon the same, and covenanted that they would make no claim for damages by reason of such abandonmеnt; and, further, that the board of aider-men found, as a fact, that said Comfort street was useless as a public highway.
To this information the respondents have demurred on the ground that the information and exhibits disclose facts from which it appears that Comfort street was legally abandoned as a public highway on December 28, 1898.
1. We do not think that the right of the board оf aider-men of the city of Providence to abandon a highway, at the time when the street in question was abandoned, depended upon any previous action of the city council in the premises. The only provision of the statute with reference to the abandonment of highways which was in force at that time was section 28 of chapter 71, Generаl Laws of Rhode Island, which, in so far as it is applicable to the case before us, is as follows :
“Town councils may . . . abandon the whole or any part of any highway . . . and thereuрon like proceedings shall be had in all respects, so far as the same are applicable, including appeals, as are provided in this chapter in casе of taking land and ascertaining damages to the owners *11 of land taken in laying out or in case of abandonment of highways. ”
The “proceedings ” inferred to in this chapter in case of the taking of land and ascertaining the damages caused thereby are contained in sections 2 to 8, inclusive; and these sections alone, with section 28,- are applicable to the аbandonment of a highway. Attorney-General v. Sherry, 20 R. I. 43.
The only provision of the statute which refers to a request by the city council as a prerequisite to action by the board of aldermen is found in section 1. “This section,” as pertinently stated by respondents’ counsel in their brief, “has nothing to do with the ‘proceedings’ in taking land for a highway or in laying out a highway, but simply confers the authority upon town councils to lay them out, as section 28 confers the authority to abandon them.” The section reads as follows:
" The town councils of the several towns may order highways to be laid оut so far and through such part of their respective towns as they may judge necessary : Provided, that the board of aldermen of the city of Providence shall not lay out any highway in said city еxcept on request of the city council thereof ; and, on such request, shall proceed according to the provisions of chapter 587 of the Public Laws, passed аt the January session in the year 1886.”
The provision in this section relating to the request of the city council is in the nature of a condition precedent to the right of the board of аldermen to order the layout of a highway ; but the action which is required on the part of the city council is no part of the proceedings connected with the actual lаying out thereof. It is therefore clearly not included in the “liks proceedings” mentioned in said section 28. Moreover, if the General Assembly had intended that the same preliminary step should be taken by thе board of aldermen in the abandonment of a highway as is required in connection with the layout thereof, they would naturally have’ incorporated a similar provision in said seсtion 28, or have made it subject thereto by reference. In the absence of any such express intention, we think it would be a strained *12 and unnatural construction for the court to inсorporate it therein.
In short, then, it appears that the action which was taken by the board was in accordance with the written requеst of all parties in interest — that is, all parties who had any legal interest in the land abutting on said Comfort street— and hence none of the “proceedings” provided for in said sections 2 to 8 inclusive were applicable. We therefore fail to see that the relators can have any standing in court under this proceeding. If it be argued that, as a part of the public, the relators are interested in the continuance of said highway, it is sufficient to reply that the General Assembly has seen fit to place such interest in the keeрing of the board of aldermen ; and it is to be presumed that they will not unreasonably or injudiciously interfere therewith. That is to say, that they will exercise the power of abandonment whiсh is conferred upon them in such manner as shall be least injurious and most beneficial to the general public. It is manifest that such power should be vested in some board or tribunal, for, otherwise, a town or city might be compelled to maintain a highway which had become wholly useless. In Elliott on Roads and Streets, 2 ed. § 879, the author says :
“Whether it is expedient to discontinuе a highway is a question for legislative decision, and when the authority to *13 discontinue is delegated to local officers, and no restrictions are placed upon its exerсise, the officers are invested with a very broad discretion; and unless this discretion has been abused, the courts cannot interfere. This is in accordance with the general rule that where officers are invested with discretionary power courts will not substitute their judgment for that of the officers invested by law with the right to decide upon the necessity or expediеncy of doing a designated act.”
The case of State v Cumberland, 7 R. I. 75, relied on by counsel for relators, is not controlling upon this branch of the present case, as the statute under which that decision was rendered was materially different from the one under which the bоard of aldermen acted in this case.
Upon the facts alleged in the information and exhibits, therefore, we decide that said Comfort street was legally abandoned by the board of aldermen on December 28, 1898, and has not since been a public highway.
The demurrer is sustained.