Fairbanks v. Mayor & Aldermen of Fitchburg
| Decision Date | 03 January 1882 |
| Citation | 132 Mass. 42 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Jacob H. Fairbanks & others v. Mayor & Aldermen of Fitchburg |
Argued October 8, 1881
Worcester. Petition for a writ of certiorari to quash the proceedings of the mayor and aldermen of the city of Fitchburg, in assessing a proportionate part of the cost of a sewer in Willow Street in that city. Hearing before Devens J., who reserved for the consideration of the full court the case which appears in the opinion.
Petition dismissed.
E. P Loring, for the petitioners.
H. C. Hartwell, for the respondents.
OPINION
The questions reserved arise on the allegations of the petition, the competency and admissibility of those portions of the answer which the petitioners moved to strike out, and, upon the whole case, whether the writ of certiorari ought to issue.
The petition does not seek to quash the proceedings only for reasons apparent of record, but also on account of certain facts not appearing thereby which it sets forth. It prays that the mayor and aldermen for the time being may certify and bring before the court the record of a former board relating to the location of a sewer in Willow and Green Streets, the construction of the same, and the order of assessment on the petitioners, to the end that such order may be quashed. It is contended on behalf of the petitioners, that, as the board for the time being is not the one that laid the assessment, it can only answer by producing the record called for; that, as no facts have been found by the present board in connection with the record adjudication, it can here allege none; and that so much of the answer as alleges the existence of certain facts which conflict with those stated by the petitioners, or by which the effect of those stated is sought to be avoided, is irrelevant, and should have been stricken out of the answer.
Where a return is made by an inferior tribunal of its proceedings as recorded, if made by a tribunal composed of the same persons before whom the proceedings took place, it may be accompanied by a statement of all its findings in matters of fact; and these cannot be disputed, even when the same do not appear on the record, if they are within the jurisdiction of the tribunal. Those composing the tribunal may also in addition to their return allege and prove extrinsic facts which may tend to show that substantial justice does not require the proceedings to be quashed. While the petitioner cannot introduce evidence to contradict the record or return in matters of fact, this extrinsic evidence, if presented, may be rebutted by him. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, and cases cited. Tewksbury v. County Commissioners, 117 Mass. 563.
The mayor and aldermen for the time being have answered over their own hands certifying the records and proceedings called for by the petition, and have also incorporated in the answer a statement of certain facts connected therewith which conflicts with or avoids that made by the petition. It was moved by the petitioners that everything should be struck from the answer except that which related to the record, as "being irrelevant, immaterial, and inadmissible, and not responsive to the prayer of the petition, and not being matters within the jurisdiction of the respondents, and therefore not properly embraced in their answer." This for the reason that the matter set forth was only within the jurisdiction of their predecessors.
That in some form a board which succeeds another, and is charged with the same duties and responsibilities with that whose action is sought to be quashed, must be admitted to meet and controvert the allegations by which this is attempted by proving what was passed upon or found by their predecessors, is apparent. Were it otherwise, the acts of inferior tribunals, many of which are elected annually, would be constantly liable to be quashed as soon as the particular board was dissolved which constituted the tribunal at the time of the order or judgment, upon some allegation of fact tending to show irregularity in its proceedings.
As petitions of this nature are usually directed against the action of a board still existing, which may therefore not only return the record, but also the facts proved before it and rulings made by it which are necessary for the determination of the case, this question has not heretofore arisen. The remedy sought by certiorari must be promptly invoked, and had there been any reasonable opportunity to have filed the petition before the term of the aldermen composing the board, whose order is complained of, had expired, we should probably have felt it our duty to hold that the petitioners had waived or lost their right to file it. The order complained of by the petitioners was passed, December 21, 1880, by the preceding board, and it does not appear that any notice of the assessment made thereby was served until January 13, 1881, after the incumbency of the present board. There was, under these circumstances, no delay in the action of the petitioners.
While the individuals composing a board like that of the aldermen of a city change, the tribunal is itself a continuous one. As an existing board is charged with the duty of executing the order of its predecessor or of reversing it, the basis upon which it rests, the facts which may fairly be deemed to have been proved, or the rulings of law made, are all for its consideration. As the existing board may ordinarily reverse an order, it is not to be inferred that such order is executed blindly. If the order of its predecessor is proceeded with, the board reaffirms and makes such order its own, and thus adopts the findings and rulings which appear to have been made and which in its view justifies such an order. It may therefore return them under the official oath of its members as a part of its official return. It is not limited, as the petitioners contend, merely to bringing in the...
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... ... Railway, 75 Mo. 208; ... Masters v. Portland, 24 Ore. 161; Fairbanks v ... Fitchburg, 132 Mass. 42. And the omission of such ... property ... ...
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In re Opinion of the Justices
...of interpretation and application rather than of constitutional power. In principle this point is covered by Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42, 47, 48. We answer ‘Yes' to question 17. [29] The inquiry presented by the first part of question 18 is whether there is cons......
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Loring v. Comm'r of Pub. Works of City of Boston
...The Legislature has not imposed any such limitation upon the lien. It is not within our province to do so. Fairbanks v. Mayor and Aldermen of Fitchburg, 132 Mass. 42, 47, 48. [14] No questions as to practice or procedure or form of remedy have been raised, and we have not considered them. S......
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...be quashed. This was permissible and proper practice. Tewksbury v. County Commissioners, 117 Mass. 563, 566;Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42, 43. Facts stated in the return are in substance that the order for taking was passed by the board of aldermen on the 6th day ......