Tileston v. Street Com'rs

• Decision Date: 25 November 1902
• Citation: 65 N.E. 380,182 Mass. 325
• Parties: TILESTON et al. v. STREET COM'RS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 325

65 N.E. 380

TILESTON et al. v. STREET COM'RS.

Supreme Judicial Court of Massachusetts, Suffolk.

November 25, 1902

COUNSEL

Geo. Wm Estabrook and Thos. T. Baldwin, for petitioners.

Thos M. Babson, City Sol., for respondents.

OPINION

HOLMES C.J.

This is a petition for a writ of certiorari based on the facts and covered by the decision in Sears v. Commissioners, 180 Mass. 274, 62 N.E. 397, except that the petitioners have devised and argued one special ground which seems to have escaped the ingenuity of counsel hitherto engaged. It is alleged, contrary to the adjudication of the board, that the estates assessed are assessed beyond the special advantage received, that they are not all the estates that received special advantage from the improvement, and, by way of suggestion or inference rather than of averment, that they are not assessed proportionately. It is alleged further that the petitioners have applied to the board for information as to the system upon which the assessments were made and as to the facts found, but have been unable to get it, and that the records of the board do not state the facts. The petition was dismissed by a single justice and the case comes here on exceptions to the dismissal, based on the old grounds and on the omission of the board to make any finding as to the nature and source of the special benefit to the petitioners, and as to the nature and amount of the general benefit to Boston land.

If the facts alleged in the petition were true, neither they nor the omission relied on in the exceptions show any ground for quashing the record as it stands. A record is not to be quashed because it does not show that no mistake can have been committed; it is quashed only for error apparent on its face. If the petitioners wished to raise the points suggested by the petition they should have moved that the defendants be ordered to certify the material facts in addition to the record disclosed by the answer. Inhabitants of Mendon v. Worcester County Com'rs, 2 Allen, 463, 466. See Ward v. City of Newton (Mass.) 63 N.E. 1064. No such motion having been made, the petition properly was dismissed.

Not only was no motion before the single judge that he should order further facts to be certified, but no foundation for such a motion is laid by the petition. It is not enough to say that if the respondents should spread before us all the evidence on which they...