Warren v. Hart

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, C.J.
• Citation: Warren v. Hart, 183 Mass. 119, 66 N.E. 412 (Mass. 1903)
• Decision Date: 27 February 1903
• Parties: WARREN v. HART, Mayor, et al.

183 Mass. 119

66 N.E. 412

WARREN v. HART, Mayor, et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1903

COUNSEL

Moorefield Storey and Warren & Perry, for petitioner.

Andrew J. Bailey, for respondents.

OPINION

KNOWLTON, C.J.

Pursuant to the decision in Warren v. Street Commissioners, 181 Mass. 6, 62 N.E. 951, a writ of certiorari was issued and three papers were filed in response to the writ, the effect of which we must consider. The first, entitled 'An Answer to the Writ of Certiorari,' is signed by counsel only. The second is an 'Application for the Discharge of Facts,' and is also signed by counsel. Both of these were filed on August 4, 1902. The third, filed October 21, 1902, is entitled 'Return,' and is as follows: 'In Board of Street Commissioners July 21, 1902. Ordered, that this board hereby declare that the assessment, made on June 25, 1900, on account of Huntington avenue, was made for the benefit conferred by the widening and extension of said avenue and by that only.' This is signed by two members of the board of street commissioners. Each of these, considered as a pleading, is irregular and erroneous. The application for a discharge of facts relates to the agreed statement of facts signed by counsel, upon which the petition for a writ of certiorari was heard before a single justice, and heard and decided before the full court. The only reason stated for the application is that the agreed statement does not contain the substance of the declaration contained in the order of July 21, 1902, which we have quoted above. In proceedings for certiorari it has long been the practice of this court '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.' Farmington River Water Power Company v. County Commissioners, 112 Mass. 206-214; Haven v. County Commissioners, 155 Mass. 467, 29 N.E. 1083, and cases cited. This case has been fully heard upon the petition, with a view to determining the rights of the parties, having reference to everything that ought to be considered in regard to the remedy sought. The agreed statement of facts was once amended, by an agreement of the parties, before the hearing in this court. The case was decided and the rescript sent on March 1, 1902. On April 24, 1902, the petitioner moved for judgment, and the motion was allowed in the county court. On May 2, 1902, the petitioner moved that the writ issue and the assessment be quashed, and May 21, 1902, it was ordered that the writ be issued.

After a writ of certiorari has been issued, nothing ordinarily remains to be done, except to quash the proceedings, unless upon the face of the record it appears that an order can be made for a correction of the proceedings, giving directions for further action or an order quashing the part which is invalid, and sustaining the part which is valid, where these parts are separable. Except where such an order is proper, it is the usual practice to make the order for the issuing of the writ show that it is issued for the purpose of quashing the proceedings. Boston & Albany Railroad Company v. County Commissioners, 177 Mass. 512, 59 N.E. 115; Hall v. Staples, 166 Mass. 399, 44 N.E. 351; Haven v. County Commissioners, 155 Mass. 467. 29 N.E. 1083; Grace v. Newton Board of Health, 135 Mass. 490. The principle is stated in suit of Lowell v. County Commissioners of Middlesex, 6 Allen, 131. In Worcester & Nashua Railroad Company v. Railroad Com'rs, 118 Mass. 561, it is said that 'after the writ has been issued the court is bound by the record.' In Ward v. Newton, 181 Mass. 433, 63 N.E. 1064, Chief Justice Holmes says, as to conditions after the writ is issued, the 'court could not retry the case, but could only quash or affirm, or, in the statutory way, modify the proceedings, as they appear bad or good on inspection. At the common law the court had no power to do anything but quash or affirm the proceedings as a whole. The statutory authority to make other orders is found in Rev. Laws, c. 192, § 4. Cases in which this authority has been acted upon or illustrated are the Boston & A. Railroad Company v. County Commissioners, 116 Mass. 73; Worcester County v. Worcester, 116 Mass. 193, 17 Am. Rep. 159; Haverhill Bridge Proprietors v. County Commissioners, 103 Mass. 126, 4 Am. Rep. 518, and Young v. Blaisdell, 138 Mass. 344. After a full hearing and a decision upon the petition, and the issuing of the writ, it is too late to make a motion for a discharge of the agreed statement of facts used at the trial. If it is conceivable that there might be a mistake of such a character as would make it proper for the court to vacate a judgment upon the petition, rendered after a full hearing, it could not be done upon a motion of this kind. A formal application, properly verified, similar to a petition for a...