Swan v. Justices of Superior Court

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation111 N.E. 386,222 Mass. 542
Decision Date09 February 1916

222 Mass. 542
111 N.E. 386



Supreme Judicial Court of Massachusetts, Bristol.

Feb. 9, 1916.

Petitions for certiorari by one Swan and one Baylies to the Justices of the Superior Court, Edward R. Hathaway, as Mayor of the city of New Bedford, intervener. Petitions dismissed.

John [222 Mass. 549]W. Cummings and Chas.
R. Cummings, both of Fall River, for petitioners.

Henry E. Woodward, City Sol., of New Bedford, and Ralph L. Theller, of Arlington, for respondents.

[222 Mass. 543]RUGG, C. J.

[1] These are petitions for writs of certiorari directed to the justices of the superior court to correct errors of law alleged to be apparent upon its records in proceedings under R. L. c. 100, § 4, as amended by St. 1912, c. 389, 1 relating to review of removals of the petitioners as license commissioners of the city of New Bedford by the intervener, Edward R. Hathaway, as mayor of that city. It is contended that the writ of certiorari does not lie. That contention is based upon the sentence in the statute to the effect that ‘there shall be no appeal from his [the superior court judge's] [222 Mass. 544]decision.’ Doubtless ‘the word ‘appeal’ here is used in a broad general sense,' so as to cover all the ordinary proceedings for a revision by this court. Dow v. Casey, 194 Mass. 48, 50, 79 N. E. 810. But the writ of certiorari is of extraordinary nature. It is one of the ancient prerogative writs, whose history stretches far back toward the beginnings of the common law. Its common purpose is the beneficent one of enabling a party who has no remedy by appeal, exceptions, or other mode of correcting errors of law committed against his rights in a proceeding judicial or quasi judicial, to bring the true record, properly extended so as to show the principles of the decision, before a higher court for examination as to material mistakes of law. Its appropriate function is to relieve aggrieved parties from the injustice arising from errors of law committed in proceedings affecting their justiciable rights when no other means of relief are open. It always has been recognized as a highly remedial salutary procedure, founded upon a sense of justice, to relieve against wrongs otherwise irremediable. That wrongs go unredressed because of a want of adequate methods would be a grave reproach to any system of jurisprudence. The writ of

[111 N.E. 388]

certiorari not only exists as a part of the common law, but it has been sedulously preserved by express statutes, which confer upon this court a broad jurisdiction and superintendence of all courts of inferior jurisdiction ‘to correct and prevent errors and abuses therein if no other remedy is expressly provided.’ R. L. c. 156, § 3; chapter 192, § 4.

It would require words unmistakable in import to express a legislative purpose to deprive parties to any appropriate proceeding from the shelter of this writ. The phrase of the instant statute falls far short of expressing that purpose. It simply indicates that there is to be no ‘appeal’ in the sense in which that word is used in ordinary legal and equitable procedure, and that the removal of such an officer, which is in large part an administrative measure, is not to be stayed in its effect by the delays necessarily incident to the usual prosecutions of exceptions or appeals. But it does not disclose a purpose to prevent the exercise of the extraordinary power of this court to rectify errors which are so fundamental in character as to warrant the invocation of the writ of certiorari. The trend of legislation has been to broaden the powers of this court as to that writ rather than to narrow [222 Mass. 545]them. See St. 1902, c. 544, § 27; Boston & Lowell R. R. v. Co. Commissioners, 198 Mass. 584, 589, 85 N. E. 108. A provision that records as made or amended by a revising board ‘shall stand as the true records' has been held not to interfere with the exercise of the supervisory power of this court. Flanders v. Roberts, 182 Mass. 524, 527, 65 N. E. 902. There is nothing in Dow v. Casey, 194 Mass. 48, 79 N. E. 810, at essential variance with this conclusion. That decision had to do with a claim that exceptions could be prosecuted in proceedings under this statute as in the ordinary action at law. The general statement in that opinion that the word ‘appeal’ includes ‘all proceedings for a revision by a higher court,’ was used with reference to the facts then before the court, is to be interpreted in connection with that case, and is not to be construed as announcing a proposition of universal application. Every opinion must be read in the light of the facts then presented. Statements of rules as applicable to that case cannot be taken out of their context and stretched to different circumstances not before the mind of the court. Cawley v. Jean, 218 Mass. 263, 270,105 N. E. 1023;Lessee of Carroll, 16 How. 275, 286, 14 L. Ed. 936;Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 Sup. Ct. 673, 39 L. Ed. 759; Quinn v. Leatham, 1901 A. C. 495, 506. The reason for this rule is plain. As was said by Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 399, 5 L. Ed. 257:

‘The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.’

The clause in the governing statute, that ‘there shall be no appeal’ from the decision of the judge of the superior court, does not prohibit an aggrieved party from invoking the writ of certiorari in appropriate instances.

In a proceeding at common law a written statement filed by the judge as to the grounds of his ruling is no part of the record. Standish v. Old Colony R. R., 129 Mass. 158;Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Cohen v. Berkowitz, 215 Mass. 68, 71, 102 N. E. 124. But as was said by Gray, C. J., in Farmington River Water Power Co. v. Co. Commissioners, 112 Mass. 206 at page 213, 214:

‘If a question of law is raised at the hearing before an inferior court, whose proceedings are not according to the course of the [222 Mass. 546]common law and not the subject of appeal or exception, it is proper to state on the record the facts proved and the ruling in matter of law upon them. Com. v. Walker, 4 Mass. 556, 558. And if this is not done, the inferior tribunal may be required by this court to certify, together with its record, a statement of the ruling made upon the point set out in the petition for a certiorari. Mendon v. Co. Commissioners, 2 Allen, 463.’

The present is a case where, if the grounds of decision or rulings of law are not set out by the court, they might be required to be properly extended and certified. Ward v. Aldermen of Newton, 181 Mass. 432, 63 N. E. 1064. The paper filed by the judge of the superior court and entitled ‘memorandum’ consisted in truth of the legal principles adopted by the judge for his own guidance and his findings of fact. This not being an action at law but a special statutory proceeding of a nature peculiar to itself, the rulings of law as made by the judge, when included in the return made to the petition for the writ of certiorari, are a part of the record and...

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