269 Mass. 585 | Mass. | 1930
This is a petition, brought by a citizen and taxpayer of the town of Wakefield against the selectmen of that town, for a writ of prohibition to restrain them from entering into an agreement with the Heywood-Wakefield
The demurrer was sustained rightly both on procedural and on substantive grounds.
Prohibition does not lie in such a case. “The function of that writ is to restrain excesses of jurisdiction intended to be committed by judicial or quasi judicial tribunals, officers and boards. It is not available for the purpose of restraining executive, administrative or legislative officers or bodies from acting where they have no authority.” Smith v. Selectmen of Norwood, 223 Mass. 222, 223. See also Lodge v. Fletcher, 184 Mass. 238. In entering into such an agreement or agreements as the vote of the town purported to authorize, the selectmen would not be performing a judicial or quasi judicial function. In fixing the details
It does not appear from the allegations of the petition that, even if the petitioner had sought his remedy in a proper way, he would be entitled to relief. It is not alleged that the respondents threaten or intend to act contrary to law or, indeed, to act at all. If it is assumed in favor of the petitioner that they are about to act under the vote, it does not follow that they will act unlawfully. The vote was a valid action of the town under St. 1906, c. 249. By that statute the town is authorized, acting by its selectmen, to “improve the brooks and natural streams and water courses” therein by widening them, removing obstructions, diverting
Exceptions overruled.