308 Mass. 12 | Mass. | 1941
This case comes here on the petitioners’ appeal from the order of the Superior Court sustaining the respondents’ demurrer to the petition for a writ of certiorari.
The petition, which is brought against the mayor and members of the city council of the city of Fall River, recites
If, from the language of the order of the city council, it can be said that the city is about to incur obligations pur
The petitioners contend that the order of the city council seeks to discontinue a portion of a public highway and, without .authority, to create a public park. We are of opinion, however, that the petitioners, upon their allegations, have no standing. The general rule is that the function of a writ of certiorari is to correct substantial errors of law committed by a judicial or quasi judicial tribunal which are not otherwise reviewable by a court. Whitney v. Judge of the District Court of Northern Berkshire, 271 Mass. 448, 458, 459. Upon the petition of proper parties, the writ is available for the purpose of reviewing the action of municipal authorities in laying out, altering and discontinuing public highways. Fisk v. Springfield, 116 Mass. 88. Davis v. County Commissioners of Hampshire, 153 Mass. 218. Hammond v. County Commissioners of Worcester, 154 Mass. 509. The only interest of the petitioners is found in the allegation that they are taxable inhabitants of the city. It is a general rule that ordinarily one cannot maintain a private action for a loss or damage that he suffers in common with the rest of the community, even though his loss may be greater in degree. Davis v. County Commissioners of Hampshire, 153 Mass. 218, 222, 223. In Hammond v. County Commissioners of Worcester, 154 Mass. 509, 511, it was said: .“If the public, or any part of it, are injuriously affected by erroneous action.. . . in laying out or discontinuing a way, their remedy must be sought through the Attorney General.” L’Homme v. Winchendon, 288 Mass. 291, 293. Wine v. Commonwealth, 301 Mass. 451, 458. See Loring v. Bryant, 281 Mass. 372.
The case at bar is distinguishable from those in which a party whose interests are injuriously affected in a manner not suffered by the rest of the community may invoke the aid of a writ of certiorari. See Powers v. City Council of Springfield, 116 Mass. 84, 87.
For the same general reasons we are of opinion that it was not open to the petitioners in this form of proceeding to question the action of the city council in so far as it relates to the establishment of a public park and authorizes the erection of the monument. Here again, there is nothing to indicate that the petitioners stand in any position different from the public generally, or that the action of the city council does not affect all persons alike without causing any special or peculiar damage to them. Whatever private injury may be said to arise in such case is common to all citizens, and the right is to be vindicated on the petition of the Attorney General or some officer representing the Commonwealth. Warner v. Mayor of Taunton, 253 Mass. 116, 118. “The public interests are entrusted to the Attorney General.” Donham v. Public Service Commissioners, 232 Mass. 309, 328, 329, and cases cited.
It has been said in connection with the right to petition for mandamus, where the petitioners have no right or interest beyond that of the taxpayers generally, that where the question is one of public right and the object of the proceeding is to compel the performance of a public duty not due to the government as such, and no other remedy is open, a private person may move without showing that he has any legal or special interest in the result beyond his interest as a citizen in the execution of the laws. Tuckerman v. Moynihan, 282 Mass. 562, 568, 569, and cases cited. See Horton v. Attorney General, 269 Mass. 503, 508, 509. Compare McGlue v. County Commissioners of Essex, 225 Mass. 59; Warner v. Mayor of Taunton, 253 Mass. 116. We are of opinion, however, that the mere statement of this rule demonstrates that
The demurrer was rightly sustained, and the petition should be dismissed with costs.
So ordered.