Rogers v. Brown
| Decision Date | 28 October 1935 |
| Citation | 181 A. 667 |
| Parties | ROGERS v. BROWN et al. |
| Court | Maine Supreme Court |
Report from Supreme Judicial Court, Cumberland County, at Law.
Certiorari proceeding by Edwin A. Rogers against Lawrence A. Brown and others, Selectmen of the Town of Brunswick. On report.
Report discharged, and case dismissed from law docket.
Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.
Joseph A. Aldred, of Brunswick, and Verrill, Hale, Booth & Ives, of Portland, for plaintiff.
Robinson & Richardson, of Portland, for defendants.
The petitioner for a writ of certiorari in this proceeding applied to the selectmen of Brunswick for a license to plant and propagate clams on the flats adjoining his lands in that town as authorized by P.L. 1933, c. 2, § 43 et seq., and his application was denied. His petition in the usual form prays that a writ of certiorari issue and the action of the selectmen be quashed. Their answer admits the truth of the facts alleged, asserts their authority to refuse to issue the license, and prays that the petition be dismissed. Without ordering the writ to issue, by agreement of the parties the case was certified forward on report.
The case is brought forward on report prematurely. If the tribunal whose records are attacked has jurisdiction in the premises, a writ of certiorari is not one of right, but grantable at the sound discretion of the court, when it appears that some injustice will be done. Levant v. County Com'rs, 67 Me. 429; White v. County Com'rs, 70 Me. 317. On the hearing on the petition, the only question for the court to determine is whether in its discretion it will issue the writ, and the grant of leave for the writ to issue is not a judgment that the record below be quashed. Lord v. County Com'rs, 105 Me. 556, 75 A. 126, 18 Ann. Cas. 665; Stevens v. County Com'rs, 97 Me. 121, 53 A. 985. Nor is a denial of the petition an affirmation of the record attacked in the petition. In order to make that adjudication, the writ must issue and the record attacked be before the court. Ford v. Erskine, 109 Me. 164, 83 A. 455. The report in this case falls into the well-settled rule that cases should be disposed of at nisi prius and should not be sent to the law court upon report at the request of the parties, except at such stage or upon such stipulation that a decision of the question may in one alternative at least supersede further proceedings. Fidelity & Casualty Co. v. Granite Co., 102 Me. 148, 66 A. 314; Libby v. Water Co., 125 Me. 144, 131 A. 862; Cheney v. Richards, 130 Me. 288, 290, 155 A. 642. No stipulation can sweep away the established rules of procedure and confer power on the court to render final judgment on a mere petition for certiorari.
Furthermore, the petitioner has mistaken his remedy. The relief sought, as the brief discloses, is an order directing the issuance of the license for which application has been made. It is the office of the writ of mandamus to compel inferior tribunals, magistrates, and officers to perform a duty imposed upon them by law. William v....
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Carter v. Wilkins
...as a petition for writ of certiorari, in its discretion granted leave for an order (writ) of certiorari to issue (Rogers v. Brown, 134 Me. 88, 90, 181 A. 667), the Board, in response to the order, certified to the Court the record of its action, consisting of stenographic report of the plai......
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Inhabitants of Town of North Berwick v. State Bd. of Ed.
...of bodies and officers acting in a judicial or quasi-judicial capacity. Carter, supra, 160 Me. 290, 203 A.2d at page 293; Rogers v. Brown, 134 Me. 88, 90, 181 A. 667. See also, R. I. Home Builders, Inc. v. Hunt, 74 R.I. 255, 60 A.2d 496 We said in McGary et al. v. Barrows et al., 156 Me. 25......
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Rogers v. Brown
...writ was awarded. On respondents' certified exception. Exception sustained, writ quashed, and petition dismissed. See, also, 134 Me. 88, 181 A. 667. Argued before DUNN, C. J., and STURGIS, BARNES, HUDSON, and MANSER, Verrill Hale Booth & Ives, of Portland, and Joseph A. Aldred, of Brunswick......
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Toulouse v. Board of Zoning Adjustment
...the Court at nisi prius has the jurisdiction to decide what should be done. Brooks v. Clifford, 144 Me. 370, 69 A.2d 825; Rogers v. Brown, 134 Me. 88, 181 A. 667; Revised Statutes 1944, Chapter 116, Section 14. These time honored rules regarding certiorari are recognized by the terms of thi......