Lord v. County Com'rs for Cumberland County

• Decision Date: 26 August 1909
• Citation: 105 Me. 656,75 A. 126
• Parties: LORD et al. v. COUNTY COM'RS FOR CUMBERLAND COUNTY.
• Court: Maine Supreme Court

75 A. 126

105 Me. 656

LORD et al.

v. COUNTY COM'RS FOR CUMBERLAND COUNTY.

Supreme Judicial Court of Maine.

Aug. 26, 1909.

Exceptions from Supreme Judicial Court, Cumberland County.

Petition by Hiram C. Lord and others against the County Commissioners for Cumberland County for a writ of certiorari to quash the record of the proceedings of the county commissioners of said county in laying out a certain townway in the town of Naples. The writ was ordered and the county commissioners certified up the full record of their proceedings as commanded. After hearing in the Supreme Judicial Court, the presiding Justice denied the motion of the plaintiffs that the record of the county commissioners be quashed, but ordered the writ of certiorari to be quashed, and the plaintiffs excepted. Overruled.

Argued before WHITEHOUSE, SAVAGE, SPEAR, KING, and BIRD, JJ.

Frank H. Haskell, for plaintiffs.

M. P. Frank, for defendants.

KING, J. Hiram C. Lord and 21 others petitioned the Supreme Judicial Court for Cumberland county, Me., for a writ of certiorari to quash the record of the proceedings of the county commissioners of said county in laying out a townway in the town of Naples. At the October term, 1908, of said court, the writ was ordered, and in obedience thereto the commissioners certified up the full record of their proceedings. At the January term, 1909, of said court, the presiding justice, after hearing, denied a motion that the record of the commissioners be quashed, and directed the writ of certiorari to be quashed. The case is before the law court on exceptions to that ruling.

In the recent case of Stevens v. Co. Com'rs, 97 Me. 121, 53 Atl. 985, this court, reviewing the authorities, restated the well-settled doctrine that, although it has been the uniform practice to hear the whole case upon the petition for the writ of certiorari, nevertheless the judgment upon the petition granting the writ and ordering the record sent up is not a judgment that the record when sent up in response to the writ is to be quashed. When the record has been certified up as directed in the writ, the question whether the petitioners are entitled to have the record quashed is then to be determined upon the record as certified. That is the question to be determined here.

Numerous alleged errors in the proceedings are set out in the petition, but they may all be condensed Into two, and in fact they are so considered in the brief of the learned counsel for the petitioners: (1) That notice of the time and place of the commissioners' meeting was not given in compliance with the statute; (2) that the commissioners did not adjudicate that the municipal officers had unreasonably neglected and refused to lay out the way.

There is, however, at the threshold of the case another question to be determined, the decision of which is, we think, decisive of the matter before us. Are the petitioners for the writ of certiorari shown to have such an interest in the proceedings sought to be quashed as entitles them to maintain the writ? We think not. They are not parties to the record sought to be quashed. None of them appear to have been petitioners to the municipal officers for the way, or to the commissioners. The way is not laid out over their land. The only ground for their claim of right to petition for this writ is that they "are citizens and taxpayers of said town of Naples." If, for this reason, they have the right to petition for certiorari to quash the laying out of this townway, then for a like reason has each citizen and taxpayer of the town a like right. But to permit that would be both unreasonable and contrary to precedent.

In the early case of Bath Bridge & Turnp. Co. Pet'rs v. Magoun et al., 8 Me. 202, Mellen, C. J., speaking of the writs of error and certiorari, said: "They are alike in this: That no one but a party to the record, or one who has a direct and immediate interest in it or is privy thereto, can maintain either of those writs. * * * Numerous cases have occurred, and many are reported, in respect to the location of roads, etc., but they have always been prosecuted by those having a direct, legal, statute interest in the proceedings complained of. As our laws on this subject now stand, the individuals whose land is appropriated for the road have a direct interest of a pecuniary character. So has the county, because liable by law to pay the owner the estimated value of the land so appropriated. So has the town, because by law bound to make the road and keep the same in repair. In Levant v. Co. Com'rs, 67 Me. 434, it is said: "The petitioner should have a direct interest in the proceedings sought to be quashed." In 4 Eucyc. P1. & Prac. p. 172, the author says: "Proceedings to establish, alter, maintain, or repair roads and highways will not be reviewed on the application of private citizens who apply for the writ in their own behalf when such applicants have no special property rights or interests involved."

In Vanderstolph v. Highway Com'r, 50 Mich. 330, 15 N. W. 495, the petitioner was interested only as a taxpayer in the town, and Graves, C. J., there said: "We think this interest is too remote and too indirect and indefinite to warrant this remedy, and that any sanction of the proceeding would be an improper exercise of discretion."

Conklin v. Fillmore County, 13 Minn. 454 (Gil. 423), is ...