Tewksbury v. County Comm'rs of Middlesex

• Decision Date: 14 May 1875
• Citation: 117 Mass. 563
• Parties: Inhabitants of Tewksbury v. County Commissioners of Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

117 Mass. 563

Inhabitants of Tewksbury v. County Commissioners of Middlesex

Supreme Court of Massachusetts

May 14, 1875

Middlesex. Petition for a writ of certiorari to quash the proceedings of the county commissioners in discontinuing a certain way in Tewksbury called Gray Street. The petition alleged that the said way was a town way and not a highway; that there had been no application to or refusal by the town to discontinue the same; that the commissioners had no jurisdiction to discontinue the way, and that for these reasons and others assigned in the petition as apparent upon the records, copies of which were annexed, the proceedings of the commissioners should be quashed; and prayed for an injunction restraining the commissioners from further discontinuing, closing up or injuring the said way.

The nature of the answer appears in the opinion.

Hearing before Ames, J., who reserved the case for the consideration of the full court upon the question whether certain evidence was admissible, and whether the writ ought to issue.

Case to stand for hearing.

D. S Richardson, (G. F. Richardson with him,) for the respondents was first called upon.

A. P Bonney, for the petitioner.

Morton J. Ames & Endicott, JJ., absent.

OPINION

Morton, J.

This case is not properly before us. In Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, the cases upon the subject are reviewed, and the proper proceedings under a petition for a writ of certiorari considered. In that case it is said, "a writ of certiorari (when not used as ancillary to any other process) is in the nature of a writ of error, addressed to an inferior court or tribunal whose procedure is not according to the course of common law. After the writ has been issued and the record certified in obedience to it, the court is bound to determine, upon an inspection of the whole record, whether the proceedings are legal or erroneous; but the granting of the writ in the first instance is not a matter of right, and rests in the discretion of the court, and the writ will not be granted unless the petitioner satisfies the court that substantial justice requires it. A writ of certiorari lies only to correct errors in law, and not to revise a decision of a question of fact upon the evidence introduced at the hearing in the inferior court, or to examine the sufficiency of the evidence to support the finding, unless objection was taken to the evidence for incompetency so as to raise a legal question."

"The uniform practice of this court for many years has been to hear the whole case upon the petition, in order to avoid unnecessary delay and expense to the parties, and to enable the court to deal with the substantial justice of the case, untrammeled by merely formal and technical defects in the record."

To enable the court to deal with the whole case upon the petition, it is necessary, and such is the established practice, for the commissioners or other inferior tribunal in answer to the petition, to return a copy of their...