205 Mass. 94 | Mass. | 1910
These are petitions for a writ of certiorari to correct alleged errors of law in proceedings before the railroad commissioners. The presiding justice,
Three different applications were made, the first by subscribers with the intention of forming “the Boston, Waltham and Western Electric Railroad Company,” and the last two for the formation of the “ Boston and Western Electric Railroad Com-pony.” The first of these was dismissed without prejudice at the request of the applicants, and the second was dismissed for an informality, in accordance with a like request of the applicants. This informality was the failure to state the par value of the shares in the agreement of association. When the third was before the railroad commissioners, sundry respondents, who are the present petitioners, contended that the disposition of each of the former applications was a refusal to issue the eertificote, within the meaning of the statute, and that the three applications were identical, so that the prosecution of the last one before the expiration of a year was a further proceeding that is forbidden by the statute. The railroad commissioners ruled that the dismissal of the first application without prejudice, at the request of the applicants, and the dismissal of the second applicatian for an informality, in accordance with a like request, were
Certain questions of form and procedure have been raised, some of which are not free from difficulty. These are, whether the remedy of the petitioners for the alleged error is not in equity (see St. 1906, c. 516, § 11; St. 1906, c. 463, Part III. §§ 155, 157; Kilty v. Railroad Commissioners, 184 Mass. 310, 311) ; whether the petitions are prematurely brought; whether certain evidence was properly excluded, and whether Charles E. Mann, the clerk of the board, was properly joined as a respondent. Some of these it will not be necessary to consider; for if they should all be decided in favor of the petitioners, we are of opinion that, for other reasons, they could not prevail. As all parties desire us to deal with the substantive questions of law on which the petitioners rely, and as a decision of these will settle the rights of the parties in these suits, we will proceed to them directly.
The provision of the statute is that, if the board refuses to issue the certificate, no further proceedings shall be had. The purpose of this evidently is that, after a deliberate adjudication against a project of this kind, the railroad commissioners shall not be required to try the same questions over again, and parties who might be opposed to the project for good reasons shall not be called upon to appear again in opposition to it, until such time has elapsed as reasonably might be expected to produce a change in conditions. That time may work such a change is recognized by the Legislature in the provision that the application may be renewed after one year from the date of the refusal. It was never intended that the railroad commissioners should not have the power, at the request of the petitioners, to deal with a technical error or an informality in the application, otherwise than by a refusal that should bar the parties from further proceedings for a year. What is meant by “ refusal ” is an adjudication against the application, founded upon a consideration of it in its substantive parts, and a determination of the question whether, in its features which affect its desirability in
It is true that costs are allowed upon a nonsuit at law, and may be decreed when a bill in equity is dismissed without prejudice, and that there is no provision for awarding costs in a case of this kind. But that consideration does not mark a distinction of much importance. This kind of proceeding is expected to affect chiefly, although not entirely, the interests of the public. Private rights are protected in other ways.
The record shows that the first and second applications were materially different in important particulars affecting the question whether a certificate ought to be granted, and if the first had been refused absolutely, it would not have barred the second application, which presented a different case for the consideration of the board. Treating the second and third applications as substantially the same, we are of opinion that the railroad commissioners were right in holding that the dismissal of the second at the request of the applicants, for an informality, was not a refusal of it within the meaning of the statute.
The evidence as to the alleged admission of the counsel for the company at the hearing upon the last application, tending to show that the incorporators or promoters in the last application were substantially the same as in the former ones, was rightly excluded. In the view that we have taken of the law,
We are of opinion that the respondent Mann, the clerk of the board, was not properly joined. He was appointed to keep a record of the proceedings of the board and to serve notices under its direction. St. 1906, c. 463, Part I. § 1. His position in reference to his duties is similar to that of the clerk of the county commissioners, or the clerk of a court of common law. These suits are to correct alleged errors of law in judicial proceedings. The records of the courts are subject to the control of the judges, so far as may be essential to the proper administration of justice. We see no reason for making the clerk a party to a suit of this kind.
Without determining whether the petitioners have' sought their remedy in a proper way, we are of opinion that they have failed to show any error in the proceedings before the railroad commissioners.
Petitions dismissed.
Braley, J.