Dube v. Mayor of City of Fall River

• Decision Date: 02 January 1941
• Citation: 30 N.E.2d 817,308 Mass. 12
• Parties: DUBE et al. v. MAYOR OF CITY OF FALL RIVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 12

30 N.E.2d 817

DUBE et al.

v.MAYOR OF CITY OF FALL RIVER et al.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 2, 1941.

Certiorari proceeding by Alphonse Dube and others against the Mayor of Fall River and others, to review an order of the city council accepting gift of statue and setting aside safety island as public park. From an order sustaining demurrer to the petition, petitioners appeal.

Petition dismissed.

Appeal from Superior Court, Bristol County.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

A. E. Beaulieu, of Fall River, for plaintiffs.

G. L. Sisson, Corp. Counsel, of Fall River, for defendants.

COX, Justice.

This case comes here on the petitioners' appeal from the order of the Superior Court sustaining the respondents' demurrer to the petition for a writ of certiorari.

The petition, which is brought against the mayor and members of the city council of the city of Fall River, recites that the thirteen petitioners are taxable inhabitants of that city; that in June, 1940, the city council adopted an order that was duly approved by the mayor, in which it is recited that whereas a committee for the celebration of the eight hundredth anniversary of the foundation of Portugal has offered to give said city a statue in honor of ‘Prince Henry, the Navigator,’ and at its own expense to erect said ‘monument * * * upon the safety island now located at the junction of Eastern Avenue and Pleasant Street, and lying northerly of the northerly line of Pleasant Street,’ it is ordered that ‘said safety island now under the care, supervision and maintenance of the department of public works be, and is hereby set aside as a public park and from henceforth shall be under the care, supervision and maintenance of the park department’; and it is further ordered that the gift of said statue be accepted on condition that said committee shall, at its own expense, erect ‘on said location said monument, including the foundation and all incidentals in connection therewith,’ and that the committee be authorized to proceed with the erection of the monument. The petition further alleges that the order ‘seeks' to incur obligations purporting to bind the city to care for, supervise and maintain as a public park certain portions of an existing public way; that it is illegal in that it seeks to discontinue a portion of a public highway, in that it attempts to create a public park without sanction of law over land already dedicated and used for highway purposes, and in that it attempts to authorize private individuals to erect a statue in a portion of an existing public way, thereby constituting an obstructionto public travel; and that it seeks to create a public park in a public way and to place it under the care, supervision and maintenance of the park commissioners contrary to law, thereby inviting the illegal expenditure of funds raised by taxation. The demurrer assigned five causes, all of which raised, in effect, the right of the petitioners to maintain their petition, and it was sustained without specifying any particular grounds.

If, from the language of the order of the city council, it can be said that the city is about to incur obligations purporting to bind it for any purpose or object, or in any manner other than that for and in which the city has the legal and constitutional right and power to do so, there is a remedy provided to prevent such action by G.L.(Ter.Ed.) c. 40, § 53, upon the petition in equity of not less than ten taxable inhabitants. This remedy is exclusive. Butler v. Selectmen of Wakefield, 269 Mass. 585, 587, 169 N.E. 498. See Finlay v. Boston, 196 Mass. 267, 270, 82 N.E. 5;Loring v. Westwood, 238 Mass. 9, 11, 130 N.E. 85;Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 147 N.E. 878;Tuckerman v. Moynihan, 282 Mass. 562, 569, 185 N.E. 2;Amory v. Assessors of Boston, 306 Mass. 354, 28 N.E.2d 436.

The petitioners contend that the order of the city council seeks to discontinue a portion of a public highway and, without authority, to create a public park. We are of opinion, however, that the petitioners, upon their allegations, have no standing. The general rule is that the function of a writ of certiorari is to correct substantial errors of law committed by a judicial or quasi-judicial tribunal which are not otherwise reviewable by a court. Whitney v. Judge of the District Court, 271 Mass. 448, 458, 459, 171 N.E. 648. Upon the petition of proper parties, the writ is available for the purpose of reviewing the action of municipal authorities in laying out, altering and discontinuing public highways. Fisk v. Springfield, 116 Mass. 88;Davis v. County Commissioners, ...