120 A.2d 329 | R.I. | 1956
ORDER OF ST. BENEDICT IN PORTSMOUTH, Rhode Island
v.
TOWN COUNCIL OF THE TOWN OF PORTSMOUTH
Supreme Court of Rhode Island.
Cornelius C. Moore, Salvatore L. Virgadamo, Francis J. Boyle, John C. Burke, Frederick W. Faerber, Jr., James E. Murphy, for petitioner.
Letts & Quinn, Andrew P. Quinn, Andrew P. Quinn, Jr., Frank Licht, Edward M. Dolbashian, Town Solicitor, Paul M. Chappell, for respondent.
This proceeding was commenced by a petition praying that a writ of certiorari be issued to review and quash certain actions and decisions of the respondent town council of the town of Portsmouth in granting to the Commerce Oil Refining Corporation a permit to build an oil refinery and also licenses to manufacture, process and store petroleum products in that town.
A citation was granted by this court whereby the petitioner was given an opportunity to show cause why the writ of certiorari should be issued as prayed for and included a notice to the members of the respondent council that they might be heard on the return day thereof as to any matter of law pertinent thereto. The cause was accordingly heard on such citation, at which time attorneys for the petitioner argued that for several reasons the petition should be granted, whereas attorneys for the respondent board urged that in the circumstances as alleged the petition should not be entertained.
At such hearing it became clear among other things: (1) That the petition was not brought under the zoning act or any ordinance thereunder wherein a writ of certiorari is the prescribed or accepted method of reviewing actions and decisions of a zoning board of review; (2) that the petition was for a writ of certiorari as at common law which is addressed to the discretion of the court, and further that such a writ is used ordinarily to review only the alleged illegal actions or decisions of an inferior judicial or quasi-judicial tribunal; and (3) that at the time there was pending or to be filed in the superior court a bill in equity or other action brought by the petitioner seeking a remedy for the same *330 grievances as are alleged in the instant petition.
After consideration, we are of the opinion that in the circumstances of record the petitioner has not clearly sustained the burden of convincing the court that it should exercise its discretion and issue the writ for the purpose of reviewing the alleged illegal actions and decisions for which the petitioner's remedy if any, may be had in and through other pending or prospective proceedings.
The petition for a writ of certiorari is therefore denied and dismissed, without prejudice however to the rights, if any, of the parties in relation to the merits of any issue alleged in the instant petition.
CAPOTOSTO and BAKER, JJ., not participating.
