Newell v. Franklin

• Citation: 74 A. 1009,30 R.I. 258
• Parties: NEWELL et al. v. FRANKLIN et al.
• Decision Date: 21 January 1910
• Court: United States State Supreme Court of Rhode Island

74 A. 1009

30 R.I. 258

NEWELL et al.

v. FRANKLIN et al.

Supreme Court of Rhode Island.

Jan. 21, 1910.

Petition by Fred E. Newell and others for a writ of certiorari to review the actions of Robert S. Franklin and others, as Commissioners appointed by the Governor to erect a bridge between the cities of Pawtucket and Central Falls. Petition denied and dismissed.

John N. Butman, Lewis A. Waterman, and Waterman, Curran & Hunt, for petitioners. William B. Greenough, Atty. Gen., Edward D. Bassett, Irving Champlin, and James Harris, for respondents.

DUBOIS, C. J. This is a petition for a writ of certiorari against the members of a commission, appointed by the Governor, to erect a bridge between the cities of Pawtucket and Central Falls, brought by certain real estate owners and taxpayers of the said cities, who seek thereby to cause a record of the proceedings of said commission to be certified to this court in order that said proceedings may be reviewed and that the illegal actions of said commission may be quashed in order that a contract entered into with one Frederick E. Shaw may be declared null and void.

The petition sets forth:

(1) The names and qualifications of the petitioners.

(2) A reference to Pub. Laws, p. 389, c. 499, passed at the January session, 1909, and the appointment and qualification of the respondents as commissioners thereunder.

(3) The authority of the commissioners under said act, to determine the necessity for the reparation of an existing bridge connecting the cities of Pawtucket and Central Fails on North Main street, or for the building of a new bridge at that location, and upon the determination of such necessity to adopt suitable plans for such reparation or construction and plans for approaches and abutments and for raising or lowering the grade of the highways leading thereto.

(4) The ignorance of the petitioners concerning the commissioners' determination as to the necessity for reparation of the existing bridge.

(5) That the commission caused an advertisement to be published.

(6) That the commission did determine upon building a new bridge, and did issue a certain proposal for building a bridge with contract and specifications attached thereto, and have adopted said plans and specifications as suitable plans for such new construction.

(7) The history and description of the highways leading to said bridge in Pawtucket and Central Falls.

(8) That the plans adopted by the commission provide for a bridge to be 50 feet wide and for widening the river.

(9) That to build a bridge as provided for in said plans and specifications it will be necessary to take or use land not now used for highway purposes.

(10) That the power to widen highways is in the board of aldermen of said cities.

(11) That there are no provisions in said act for widening the streets or the bridge or to take land for such purpose.

(12) That the contract has been awarded to Frederick E. Shaw, who is proceeding to construct the new bridge, and that the act of the commission in adopting said plans and in awarding the contract to Shaw is null and void.

(13) That in said plans there is a provision for the building of a temporary foot bridge which is illegal and void.

(14) That in said proposal there was a provision that each bid must be accompanied by a bond or certified check.

(15) That the commissioners improperly received the bid of the McKinnon Construction Company without approving the bond when said bond was not satisfactory.

(16) That four parties bid under said proposal, whereof the bid of the Sperry Engineering Company was the lowest and that of Frederick E. Shaw the highest.

(17) The history of the Sperry Engineering Company, one of the bidders, and its ability and willingness to give bond.

(18) That the Sperry. Engineering Company did furnish said commissioners evidence of its ability to perform the contract within the time specified.

(19) An averment that the commissioners did grossly abuse their discretion by rejecting the bid of said Sperry Engineering Company and accepting the bid of Frederick E. Shaw, and that their acts of rejection and acceptance were without authority, illegal, and void.

To this petition the respondents have filed the following motion to dismiss:

"And now come the respondents Robert S. Franklin, Fred B. Lawton, and Albert H Langworthy, North Main Street Bridge Commission, and move that the petition for a writ of certiorari filed by Fred E. Newell et al. be denied and dismissed, and for reasons say:

"(1) That the petitioners have no interest in the subject-matter of the controversy other than is held in common with any other taxpayer of the cities of Central Falls and Pawtucket, as appears in and by their said petition.

"(2) That said petition is not brought in the name of the Attorney General, as appears in and by said petition.

"(3) That the act or acts of the respondents complained of are legislative or ministerial in their nature, and not judicial or quasi judicial, as appears in and by said petition.

"(4) That this honorable court has no jurisdiction to review in these proceedings the acts complained of as set forth in the said petition, as in and by said chapter 499 of the Public Laws such acts are left to the discretion of these respondents.

"(5) That these respondents are under no obligation to keep any record of their doings and proceedings, as appears by reference to chapter 499 of the Public Laws of Rhode Island.

"(6) That Frederick E. Shaw, of the city and county of Providence, the person with whom these respondents have entered into a contract to erect a bridge at the site of the North Main Street Bridge, is not a party to these proceedings, as appears in and by said petition.

"(7) That the petitioners are guilty of laches in bringing their said petition after these respondents, as commissioners aforesaid, have incurred liability and work has commenced on the contract entered into by them, as appears in and by said petition.

"(8) If it appears by said petition that said commissioners have exceeded their authority, the petitioners have an adequate remedy by injunction, and therefore certiorari will not lie.

"Wm. B. Greenough, Atty. General.,

"Edward D. Bassett,

"Irving Champlin,

"James Harris,

"Solicitors for Respondents."

The motion to dismiss has been treated as equivalent to a demurrer, which for the purpose of questioning the sufficiency of the petition admits all matters of fact therein set out. It is therefore necessary to confine our examination to the allegations of the petition, including so much of Pub. Laws 1909, p. 389, c. 499, hereinbefore referred to, as is therein set forth, because it must stand or fall, as the case may be, in consequence of its own strength or weakness.

The petitioners, as owners of real estate and taxpayers in the cities to be connected by the proposed bridge, have a special interest in the subject-matter in controversy sufficient to enable them to petition for the writ, especially in a case like the present, where, as appears above, the Attorney General is one of the solicitors for the respondent, under the provisions of Gen. Laws 1896, c. 17, § 4, which reads as follows: "Sec. 4. The Attorney-General, whenever requested shall act as the legal adviser of all state boards and commissions and the officers thereof, of all commissioners appointed by the General Assembly, of all the general officers of the state, and of the state auditor, in all matters pertaining to their official duties, and shall institute and prosecute, whenever necessary, all suits and proceedings which they may be authorized to commence, and shall appear for and defend the above-named boards, commissions, commissioners, and officers, in all suits and proceedings which may be brought against them in their official capacity." This statute has received the interpretation of this court in the case of the Newport Police Commission, 22 R. I. 654, 49 Atl. 36. The same provisions are now contained in Gen. Laws 1909, c. 23, 8 4.

There is no merit in either of the contentions that Frederick E. Shaw should be a party to the proceedings or that the petitioners have been guilty of laches in the premises.

By the third and eighth grounds of their motion to dismiss, the respondents deny the appropriateness of the remedy invoked by the petition, and present for our consideration the question whether the petition prays for the review of the judicial action of a public body exercising under the law judicial or quasi judicial functions. See Greenough v. School Committee of Pawtucket, 27 R. I. 428, 62 Atl. 978.

Even if we assume, for the purposes of this consideration, that the respondent commission is a board that may exercise judicial or quasi judicial functions, the vital question still remains to be answered—was it exercising such functions in respect of the acts complained of in the petition—for, if it was not, then certiorari will not lie. In the case of Greenough v. School Committee, supra, this court quoted with approval the words of Mr. Justice Field as to the distinction between a judicial and a legislative act: "The one determines what the law is and what the rights of the parties are with reference to transactions already had; the other prescribes what, the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation or of property as the foundation on which it proceeds, such act is to that extent a judicial one and not the proper exercise of legislative functions." We deduced therefrom the principle that "judicial action" is the determination of contested existing rights; while that which directed future action on the principle of policy or expediency is "legislative." Tested by this standard, are the acts complained of judicial? Such acts are described in paragraphs numbered 5, 6, 12, 15, and 19, hereinbefore referred to, and consist of the publication of an advertisement;...