Stevens v. Somerset County Com'rs

• Decision Date: 10 December 1902
• Citation: 53 A. 985,97 Me. 121
• Parties: STEVENS v. SOMERSET COUNTY COM'RS.
• Court: Maine Supreme Court

53 A. 985

97 Me. 121

STEVENS

v. SOMERSET COUNTY COM'RS.

Supreme Judicial Court of Maine.

Dec. 10, 1902.

(Official.)

Report from supreme judicial court, Somerset county.

Certiorari by Sarah E. Stevens to quash the proceedings of the county commissioners of Somerset county in laying out a road. Case reported, and writ quashed.

This was a hearing on a writ of certiorari commanding the county commissioners of Somerset county "to send and bring and have before our said justices of our said court * *（ * the full record of their proceedings upon said petition of the said Sarah E. Stevens, with all things touching the same, fully and entirely, as the same remain before them, by whatever names the parties are therein called," that the court might determine whether the record should be quashed for the second reason set out in the writ, the first having been abandoned.

That reason is alleged to be "because Alonzo Smith, one of the board of county commissioners, who took part in the adjudication upon said petition and appeal therefrom, was related to three of the signers of said petition within the sixth degree by marriage or consanguinity."

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, POWERS, PEABODY, and SPEAE, JJ.

Forrest Goodwin, for petitioner.

Geo. W. Gower, for respondent.

SPEAR, J. Certiorari to quash the proceedings of the county commissioners of Somerset county in laying out a winter road. Ail the proceedings from the petition to selectmen to the judgment of the commissioners were regular and in proper form.

The selectmen, upon proper petition, laid out the road, as prayed for, over the land of the petitioner. The petitioner appealed from their decision to the court of county commissioners. The county commissioners, upon proper notice and hearing, confirmed and adopted the action of the selectmen.

The petitioner then appealed from the decision of the county commissioners to the supreme judicial court for Somerset county. At the March term of court, 1901, the appeal was dismissed, and the decree of the county commissioners affirmed.

After all these proceedings, admitted to be regular, the petitioner asks to have the proceedings of the commissioners annulled, "because Alonzo Smith, one of the board of county commissioners, who took part in the adjudication upon said petition and appeal therefrom, was related to three of the signers of said petition within the sixth degree of marriage or consanguinity; which errors are in proceedings that are not according to the course of the common law, and should be quashed." The above alleged error does not appear in any of the proceedings or the record thereof.

We do not think the writ of certiorari will reach the difficulty. No evidence dehors the record can be admitted upon the writ to show irregularities and errors in the proceedings.

An inspection of the record alone must determine the sufficiency of the proceedings.

Emery v. Brann, 67 Me. 39, was a petition for certiorari to require justices of the peace and of the quorum to certify up the record of their proceedings in taking the disclosure of a debtor under Rev. St. c. 113. In this case it was held, not only that the error complained of must appear by an inspection of the record, but that the error should be alleged in the petition. On page 44 the court say: "But it is not alleged in the petition that the irregularities and errors specified appear by the record of the justices which they seek to have quashed. The petition should contain such an allegation."

It also appears from that case that the alleged error in the proceedings was that it did not appear by the citation that the debtor was arrested and gave bond in the county of Somerset, and therefore the justices had no jurisdiction; and the court expressly says that, if the debtor was not arrested in that county, the proceedings were unauthorized, and that the facts, if allowed to be proved, would show a want of jurisdiction on the part of the court making the record. Yet the court held that no evidence was admissible—even the original papers in the case-to show error, fraud, want of jurisdiction, injustice, or any other fact by testimony dehors the record. In giving expression to the opinion of the court, Mr. Justice Libbey quoted Pike v. Herrlman, 39 Me. 52, in which it was said, "The petitioner offered to prove certain facts dehors the record, but the evidence was held inadmissible." "The court say: 'A writ of certiorari can present only a record of their proceedings, but no testimony can be received from the petitioner to affect the record or to prove other facts not appearing in it;' citing Com. v. Blue Hill Turnpike, 5 Mass. 420. The same rule is affirmed in Ross v. Ellsworth, 49 Me. 417."

In Emery v. Brann, supra, certain original papers were offered propounding certain questions tending to contradict the record. But the court say: "By the record it appears that no such question was put to the debtor by the attorney for the creditors. The evidence offered is not admissible to show error in the record. Nor is it admissible to prove fraud. Upon this point it is sufficient to say that the petition alleges no fraud in the record. If there was fraud in the proceedings, a writ of certiorari is not the proper remedy to correct it. Nor is the evidence admissible to show that injustice was done by the justices, for the reasons stated in the case above cited."

In the case at bar "it is not alleged in the petition that the irregularities and errors specified appear by the record," nor could it be so alleged, nor does the error in fact appear of record, for the error was in no way presented to the attention of the commissioners, and could not be of record even by way of correction or amendment.

The above case would seem to be decisive of the case at bar, but there are many other cases, decided by our own court, to the same effect.

"The writ prayed for can present only the records of the proceedings by the tribunal. Nothing dehors the record can be proved by the petitioner." Ross v. Ellsworth, 49 Me. 418.

"Moreover, it was held in Pike v. Herriman, supra, that the writ prayed for can present the record only, and nothing dehors the record can be proved by the petitioner." McPheters v. Morrill, 66 Me. 125.

"When the writ issues, the court can act only on the record as produced. No evidence aliunde is receivable. The record is conclusive, and, if error exists, the proceeding is quashed." White v. Commissioners, 70 Me. 326.

"For when the writ Issued, the sufficiency of the record returned in answer to the writ must be determined from an inspection of it." Hewett v. Commissioners, 85 Me. 309, 27 Atl. 179.

"Whether the proceeding by certiorari is regarded as one merely to set aside proceedings in...