Ahern v. Middlesex County

• Decision Date: 12 January 1903
• Citation: 65 N.E. 905,182 Mass. 518
• Parties: AHERN et al. ROGERS SAME v. MIDDLESEX COUNTY et al. ROGERS SAME v. TOWN OF WATERTOWN. ROGERS SAME v. MIDDLESEX COUNTY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 518

65 N.E. 905

AHERN et al. ROGERS SAME v. MIDDLESEX COUNTY et al. ROGERS SAME v. TOWN OF WATERTOWN. ROGERS SAME v. MIDDLESEX COUNTY.

Supreme Judicial Court of Massachusetts, Middlesex.

January 12, 1903

COUNSEL

Geo L. Mayberry, for Middlesex county,

John E Abbott, for towns of Belmont and Watertown.

OPINION

KNOWLTON C.J.

There are petitions for an assessment of damages to the lands of the petitioners, occasioned by the alteration and widening of Belmont street, a public highway, by order of the county commissioners of Middlesex. The order of the commissioners directed the payment of the damages in each case by the town in which the land lies. The land of the petitioner Ahern lies in the town of Belmont, and the petitioner Rogers' land lies in the town by Watertown. These petitions present the question whether, under the order, the petitioners respectively, have a remedy in damages against the town or against the county. The facts are stated at length in Inhabitants of Watertown v. Middlesex Co Com'rs, 176 Mass. 22, 56 N.E. 971, in which it was held that the proceedings of the county commissioners were under Pub. St. c. 49, § 1, and not under Pub. St. c. 49, § 13. It is conceded that the commissioners had no authority under the statute, to direct the payment of the land damages by the respective towns, inasmuch as there is no statute which authorizes such an order. The whole subject is covered by Pub. St. c. 49, § 58, which expressly provides that 'all the expenses of the proceedings, and also of damages allowed therefor, and of sums awarded as indemnity, shall be paid by the county upon order of the commissioners, except as herein otherwise provided.' It is contended on the part of the county that the order of the commissioners for the payment of land damages by the towns, although erroneous, is to be given effect, inasmuch as the proceedings have never been set aside by the court, and that the only remedy available either to the petitioners or the towns for this error is by a writ of certiorari. It has often been held that irregularities and informalities in cases of this kind can only be corrected on certiorari. Old Colony R. Co. v. Fall River, 147 Mass. 455, 18 N.E. 425, and cases cited. Indeed, parties have been permitted to resort to certiorari, even when the proceedings were wholly void for want of jurisdiction. Inhabitants of Charlestown v. Middlesex Co. Com'rs, 3 Metc. 202; Boston & M. R. R. v. Mayor, etc., of Lawrence, 2 Allen, 107; Boston & A. R. Co. v. Hampden Co. Com'rs, 116 Mass. 73. But it never has been held that proceedings wholly outside of the jurisdiction of a board of county commissioners would be held good until set aside upon a writ of certiorari. The distinction lies between proceedings which are irregular, informal, and erroneous in matters within their jurisdiction and those that are void because done without jurisdiction. It would hardly be contended that action of such a tribunal under an unconstitutional statute would be held unimpeachable in collateral proceedings. The case of Old...