Farmington River Water Power Co. v. County Commissioners
112 Mass. 206
Mass.
1873
Check Treatment
Gray, C. J.

By the Gen. Sts. c. 145, § 8, “ writs of certiorari tо correct errors in proceedings that are not according to the course of the common law shall be issued from and returnable to the Supreme Judicial Court according to the practice herеtofore established.” The determination of this case must be governed by the law and practice so established, which do not seem to have been kept in mind by either party to these proceedings.

A writ of certiorari (when not used as ancillary to any other process) is in the nature of a writ of error, addressed to an inferior court or tribunal whose procedure is not according to the course of the common law. After the writ has been issued and the record certified in obedience to it, the court is bound to determine, upon an inspection of the whole record, whether the proceedings are legal or erroneous ; but the granting of the writ in the first instance is not a matter of right, and rests in the discretion of the court, and the writ will not be granted unless the petitioner satisfies the court that substantial justice requires it. Commonwealth v. Sheldon, 3 Mass. 188. Ex parte Weston, 11 Mass. 417. Lees v. Childs, 17 Mass. 351. Freetown v. County Commissioners, 9 Pick. 46. Rutland v. County Commissioners, 20 Pick. 71. Gleason v. Sloper, 24 Pick. 181. Marblehead v. County Commissioners, 5 Gray, 451, 453. Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491.

A writ of certiorari lies only to correct errors in law, and not to revise a decision of a question of fact upon the evidence introduced at the hearing in the inferior court, or to examine the sufficiency of the evidence to support the finding, unless objection *213was taken to the evidence for incompetency, so as to raise a legal question. Hayward's case, 10 Pick. 358. Nightingale's case, 11 Pick. 168. Cousins v. Cowing, 23 Pick. 208. Stratton v. Commonwealth, 10 Met. 217. In Nightingale's case, Mr. Justice Wilde said: “We cannot on certiorari examine the merits of a cause and set aside a verdict as against evidence.” And even if incompetent evidence was admitted, the сourt in its discretion will refuse a certiorari if the fact in question was clearly proved by other evidence. Cobb v. Lucas, 15 Pick. 1. Gleason v. Sloper, 24 Pick. 181.

The refusal of the county commissioners to abate a tax cannot be revised upon certiorari, except for an erroneous ruling in matter of law. Gibbs v. County Commissioners, 19 Pick. 298. Chicopee v. County Commissioners, 16 Gray, 38. Lowell v. County Commissioners, 6 Allen, 131. The Legislature has evidently considered the county commissioners a more appropriate tribunal ‍‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‍to decide questions of fact in the matter of taxation than a court of common law or a jury.

The provision of the Gen. Sts. c. 145, § 9, reenacting the St. of 1858, c. 109, and empowering the court, upon certiorari, to “ enter such judgment as the court below shоuld have rendered, or make such order, judgment, or decree in the premises as law and justice require,” does not enlarge the authority of the court to examine the matters passed on below, but merely enables it, after examining the case according to the rules of law, to embody the result in a new judgment, framed so as to secure the rights of all parties, instead of being limited, as it was before the statutes were amended in this resрect, to quashing or affirming the judgment below. Commonwealth v. West Boston Bridge, 13 Pick. 195, 196. Lowell v. County Commissioners, 6 Allen, 131. Haverhill Bridge Proprietors v. County Commissioners, 103 Mass. 120.

If a question of law is raised at the hearing before an inferior court, whose proceedings are not according to the course of the common law and not the subjeсt of appeal or exception, it is proper to state on the record the facts proved and the ruling in matter of law upon them. Commonwealth v. Walker, 4 Mass. *214556, 558. And if this is not done, the inferior tribunal may be required by this court to certify, together with its rеcord, a statement of the ruling made upon the point set out in the petition for a certiorari. Mendon v. County Commissioners, 2 Allen, 463.

But whenever the case was within the jurisdiction of the inferior tribunal, the petitioner for a writ of certiorari cannot be permitted to introduce еvidence to contradict or vary its statement, in its record or return, of its proceedings and decision. Pond v. Medway, Quincy, 193. Commonwealth v. Blue Hill Turnpike, 5 Mass. 420. Rutland v. County Commissioners, 20 Pick. 71. Mendon v. County Commmissioners, 5 Allen, 13. Charlestown v. County Commissioners, 109 Mass. 270.

It is only where extrinsic evidence has been introduced, at the hearing upon the petition, in support of the dеcision below, and by way of showing that substantial justice does not require the proceedings to be quashed, that like evidence may be introduced by the party petitioning for the writ, and then upon the same point only. New Salem, petitioner, 6 Pick. 470. Rutland v. County Commissioners, 20 Pick. 71. Gleason v. Sloper, 24 Pick. 181. Stone v. Boston, 2 Met. 220, 228.

A writ of certiorari must be addressed to the court having the custody and control of the record of the proceedings sought to be quashed. Commonwealth v. Winthrop, 10 Mass. 177. It can only be granted after notice and ‍‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‍opportunity to show cause against it; and, if granted without suсh notice", will be quashed as improvidently issued. Commonwealth v. Downing, 6 Mass. 72. When the proceedings were before county commissioners, notice of the petition should be given to them, the answer or return to the petition must be the joint act of thе whole present board, and the separate answer of one commissioner .cannot be received. Plymouth v. County Commissioners, 16 Gray, 341.

The uniform practice of this court for many years, as shown in numerous reported cases, has been to hear the whole case upon the petition, in order to avoid unnecessary delay and expense to the parties, and to enable the court to deal with the substantial justice of the case, untrammеlled by merely formal and technical defects in the record.

*215No better illustrations of the course of proceedings upon applications for a writ of certiorari are to be found in our books than are afforded by thе two cases, upon which the petitioners in this case principally rely, of Rutland and Mendon v. County Commissioners of Worcester.

In the case of Rutland, 20 Pick. 71, the town of Rutland petitioned for a writ of prohibition to the county commissioners, to prevent their issuing a warrant against the town for the expenses of making a highway laid out by the commissioners through that town, until a petition for a writ of certiorari to quash their proceedings could be heard, and the court said : “A petition for a writ of certiorari is well understood to be addressed to the disсretion of the court. When the record is before the court on the return of the writ, the court ‍‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‍will look only at the record; for this reason it would be futile to admit evidence to contradict the record on the pеtition for a certiorari; but it being within the discretion of the court to grant or refuse the writ, evidence extrinsic to the record may properly be received to show that no injustice has been done, and that a certiorari ought not to be issued. Thе petitioners, in the case before us, will in the first place exhibit the record and point out in what particulars they consider it erroneous or defective; and then the respondents may prove by extrinsic evidence that no injustice has been done, that if the proceedings shall be quashed, the parties cannot be placed in statu quo, or that for any good reason a certiorari ought not to be granted. If such evidence shall be offered by the respondents, the petitionеrs will of course have a right to rebut it by like evidence.” Testimony was then introduced by both parties upon that point only ; and the court, upon considering that testimony in connection with the record and the proposеd petition for a certiorari, held that substantial justice did not require a writ of certiorari to be issued, and dismissed the petition.

In the case of Mendon, the petition for a writ of certiorari to compel the county commissioners to certify the record of their proceedings confirming the laying out of a town way by the selectmen of Mendon, alleged that the commissioners at thе hearing before them made an erroneous ruling upon a question of the *216burden of proof, which was not stated in their record. No answer being filed to the petition, it was heard upon the admission of the respondents, in the nature of a demurrer, that the facts alleged therein were true, and the court directed a writ of certiorari to issue, containing a precept to the commissioners to certify their record to this court, with a statement of the ruling made by them on the point set out in the petition. 2 Allen, 463. Before a writ of certiorari was issued, it was agreed by the counsel that an answer to the petition might be filed, and the case be considered by the court as if the writ had been issued and the case had been heard upon the writ and answer; and the commissioners accordingly filed an answer containing a statement of their rulings in detail. To this answer the petitioners filed a replication, denying some of the facts stаted in the answer, alleging that it did not contain all the material facts necessary to the determination of the case, and praying that they might be heard upon the facts. But the court held that the statement of the commissioners was conclusive, and being satisfied that their decision, as stated by them, upon the point complained of by the petitioners, was substantially correct, held that no good cause was shown for vacating their рroceedings or for remitting the case to a new hearing, and adjudged the proceedings to be good. 5 Allen, 13. One passage in the opinion of Chief Justice Bigelow, in 2 Allen, 465, might at first sight be thought to imply ‍‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‍that in the hearing upon a writ of certiorari, when issued, the court should not be governed by strict and exact rulеs of law; but it is manifest from the context that he had in mind only the hearing upon the petition for the writ; and he prefaced the second opinion, in 5 Allen, 15, by declaring that by the first decision “the court did not intend to change in any essential degree the mode of proceeding or the practice in cases of this nature.”

In the present case, the record of the commissioners, a copy of which is annexed to the petition for a certiorari, dоes not state any ruling of the commissioners, except their final decision that they do not find in fact or in law that the tax or any part thereof should be abated, and their order that the petition for an abate*217ment shоuld be dismissed. The annexing of a full report of the evidence taken before them, as a part of their report, was, to say the least, irregular, and unnecessarily incumbered their record. The petition for a certiorari doеs not specify any error in the admission or rejection of evidence, nor pray for a certificate of any ruling made by the commissioners and not appearing on their record. The answer proposеd to be filed does not state any facts but those found by the commissioners at the hearing before them. The town therefore irregularly joined in the answer of the commissioners ; and the name of the town should be stricken out of that answer, leaving it to stand as a return in writing by the commissioners of their findings, which cannot be disputed in matter of fact, and in which the petitioners have failed to show any error in matter of law.

The evidence admitted by the cоmmissioners, which is now argued to have been incompetent, is of two classes. The one consists of testimony as to the benefits derived by other parties in their property and business from the water power creatеd by the reservoir dam of the petitioners. This was competent to show the value of the reservoir by reason of its capacity for valuable use, and to disprove the petitioners’ allegation that it was of merely nominal value. Pingree v. County Commissioners, 102 Mass. 76. The other consists of answers to questions put to the petitioners’ witnesses on cross-examination. This might be admitted in the discretion of the commissioners ‍‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​‌‌​‌‌‌​‌‌‌​​​‌​‌‌​‌‌‌‌​‌‌​​​‍by way of testing the credibility of the witnesses. It does not appear that the commissioners allowed improper weight or effect to any of the evidence.

The necessary conclusion, following as nearly as may be the terms of the report on which the case has been reserved for our determination, is that the commissioners have the right to file the answer tendered, after amending it by striking out the name of the town; that the answer, thus amended, constitutes a good defence, which cannot be impeached or controlled by the petitioners that no further proceeding is open to them, and that their

Petition for a writ of certiorari be dismissed.