Towns of Rockingham & Grafton v. Town of Westminster

24 Vt. 288 | Vt. | 1852

The opinion of the court was delivered by

Ishah, J.

The application for the writ of certiorari is addressed to the discretion of the court, and will not usually' be granted unless the substantial justice of the case requires this remedy.

The object of the writ, in this case, is to bring before this court the proceedings of commissioners under the 53d Sec. of the act for laying out and discontinuing highways and bridges, with the decision of the county court thereon, for the purpose of enabling this court to consider and determine upon the exceptions filed to the report.

We learn from the case, that by order of the county court, the town of Westminster were required to build a bridge across Sax-ton’s river in that town, and that "Westminster, feeling itself excessively burdened by defraying the whole expense therefor, preferred their petition, and thereby are seeking an apportionment of a part of the expense from other towns, as the bridge when constructed would be for their especial benefit and accommodation. The commissioners have found, and so state in their report, that the towns of Rockingham and Grafton would be accommodated by its construction, and should have apportioned to them a part of the expense. They have also found that the town of Westminster would be excessively burdened in defraying the whole expense, and as a preliminary part to such finding have estimated the expense of the bridge at the sum of $1,890,20. From the facts so found they have apportioned to the town of Rockingham the sum of $600, and to the town of Grafton the sum of $150.

Exceptions have been taken to this mode of apportionment by the commissioners, and it has been contended that they cannot make an apportionment in specific sums of money to be paid by the towns, but are simply to settle and define the ratio of expense to which they are to be subjected. And we entertain a decided conviction, that this is the true construction of the act, and presents the only feasible and proper mode of carrying into effect the purposes and objects contemplated in the statute. When this ratio of expense is settled and fixed by the commissioners, it becomes the basis upon which the court to which the report is returnable, may assess the towns so benefitted according to the report, and make their order on the same. When, therefore, the actual expense of the bridge is ascertained, whether more or less than the sum estimated by the commissioners, then the court by their order can divide the whole expense among the towns, on the ratio as fixed by the commissioners.

The proceedings of the commissioners in this case would be evidently erroneous if the towns assessed are subject to pay more than they would be required to pay on this construction of the act. But if the rule of apportionment adopted by the court and commissioners would not' increase their liability, or if it should have the effect to lessen the amount below the sum at which they are assessed, then they have not sustained that injury or injustice that would warrant the issuing of this writ on their application. For it has been decided, that it is not sufficient that error exists in the proceedings of -an inferior tribunal, or that they have mistaken the law, but to justify the issuing of this writ, it must also appear that injustice has been done to the petitioner. Myers v. Pownal, 16 Vt. Rep. 417.

The court have adopted the sum of $1890, as estimated by the commissioners, as the whole expense of the bridge, throwing off the fraction of a dollar as reported, and- of which the petitioners have no reason to complain, and have adopted as the ratio of apportionment the sum that $600 bears to $1890, in one case, and the sum of $150 bears to $1890, in the other. If the estimated sum is the actual expense of the bridge, then the ratio of apportionment as reported is just- and the petitioners have no reason to complain. But if the expenses of the bridge were less than that amount, the petitioners have reason to complain, if the sum apportioned to them is the amount they .would be required to pay, as they would pay more than would be their proportion, on the ratio as reported.

But this difficulty is avoided on the principle decided in the case of Brookline v. Westminster, 4 Vt. 224. In that case it was held, that in an action on an assessment, in a similar ease, the actual expense of the bridge was a subject of inquiry, and that notice of the actual expenditure should be given to the selectmen of the town sought to be charged. If, therefore, the actual expenses of the bridge was less than $1890 in the same proportion should the amount be reduced on the liability of the petitioners. In no event, therefore, on such facts could injustice be done to the petitioners. If the bridge should cost more than the estimated amount, whether the petitioners would be bound to pay more than $600 is a question we are not called upon in this case to decide. In that event they would have been obliged to pay more if this construction of the act had been adopted by the court and commissioners. But if by the order of the court, the whole expense is limited to that amount, then the petitioners have no reason to complain, for all these considerations have operated in their favor by lightening their liability. This question properly arises on the assessment when made by the county court, and is not now properly involved in this case.

Regarding, therefore, the sums apportioned to the respective towns, not as tlie amount they are actually obliged to pay, but as fixing, witli the estimated expense of the bridge, the ratio of expense which they are liable to have apportioned to them. We see no occasion for these petitioners to complain, for the adoption of this rule is the most favorable one for them. The town of Westminster lias more reason to complain, if they are limited to the amount adopted by the court and commissioners as the actual expenses of the bridge. For to the extent of that excess they would be the losers. But whether they are so limited or not, we exjn’ess no opinion.

It is further objected that the commissioners rejected evidence showing that the town of Westminster was in reality benefited rather than injured in making this bridge, as the expenses in its construction are not so great, or the charge so onerous as keeping in repair the old road which has been discontinued. If this is true in fact, still as the commissioners have found that Westminster is unreasonably burdened by these expenses, notwithstanding this benefit, the testimony became immaterial, and had it been received it could not have altered the result. The other objections not having been insisted upon, the result is, that this petition must be dismissed — with costs.