Blake v. County Commissioners

Devens, J. The interviews of Mr. Aspinwall with one or more of the commissioners, which are alleged as one of the grounds for this petition, and which took place subsequently to the hearing in reference to the proposed widening of Washington Street, were of questionable propriety. It is important that contested matters upon which any tribunal is to pass should not in any way be made the subject of conversation, except in the presence of all parties to the controversy. If we were left in doubt as to whether the judgment of the commissioners was in any way affected by them we might feel it our duty to grant the petition. The existence of a cause which might improperly affect their judgment, although it is not known that it did so, is a sufficient ground for such action. If it was found that the members of such a tribunal had been addressed with any improper motive, or with intent to sway or bias their judgment, even if such attempt had not been shown to be effectual, it would also be a sufficient ground for such action. In the present case, however, the facts were distinctly found that Mr. Aspinwall addressed the commissioner or commissioners at their office in Boston, with no improper purpose to influence their action, his object being only to hasten it. It is also found that their action was not changed by reason of any [586] thing done by him. We do not think, therefore, that the proceedings should be quashed on account of these conversations, or that important public rights should be lost, because of an irregularity found to have been unintentional, and attended with no evil result. A petition for certiorari is addressed to the sound discretion of the court, and is not granted merely to enable a party to avoid the proceedings of an inferior tribunal for unimportant or technical errors, where no wrong has been done. Stone v. Boston, 2 Met. 220. Lees v. Childs, 17 Mass. 351. Pickford v. Mayor, &c. of Lynn, 98 Mass. 491. Nor should this petition be granted because a luncheon or dinner was provided by the town for the convenience of the commissioners, and all parties interested in the original hearing. This court has condemned in decided terms attempts to influence members of the Legislature by dinners, &c., at houses of entertainment, as having a tendency to induce those who accept such attentions, to act unfairly towards interested parties, or towards the public. Frost v. Belmont, 6 Allen, 152, 159. If the present case exhibited an attempt thus to influence the commissioners, it would be a good ground for this application. But simple and necessary refreshment for those who were engaged in the examination and relocation of the road, to which both those who were in favor of the plan for widening Washington Street, and those who were opposed to it, with their witnesses, were invited, and of which they partook, so far as appears, without any objection, ought not now to be made a ground of disturbing the judgment. Especially when it is found by the report that this was done in accordance with a custom that prevailed in the county, for the petitioners in similar cases so to provide for the commissioners and for parties interested. A third reason.assigned for quashing these proceedings is that no sufficient recognizance was given for costs by the town of Brookline upon its petition, according to Gen. Sts. c. 43, § 2, which provides that “ no petition for the laying out, altering or discontinuing a highway, shall be proceeded upon by the commissioners until the petitioners cause a sufficient recognizance to be given to the county, with surety to the satisfaction of the commissioners, for the payment of all costs and expenses which shall [587] arise by reason of such petition and the proceedings thereon, if the petitioners shall not finally prevail.” There were three petitions for the same purpose before the county commissioners, and the petitioners named in the other petitions gave the requisite recognizance, but the town of Brookline failed to do so. It is contended by the respondents that by Gen. Sts. c. 43, § 12, such recognizance is not required where the petition is for locating anew a highway. Assuming, however, that such a recognizance ought properly to have been given, it is not a matter in which any injury has been or can be done to the petitioner. New Marlborough v. County Commissioners, 9 Met. 423. Where steps which should have been taken or proceedings which should have been had, not essential to the jurisdiction, are omitted, the adjudication should not be avoided, unless at the instance of some party who has an interest in such step or proceeding, and who was or is liable to lose by the omission. We do not think the giving the bond in question was thus essential, and it was intended only for the security of the county. In the case of Commonwealth v. Sawin, 2 Pick. 547, the proceedings were quashed upon the petition of the land-owner alleging that there had been no adjudication, that the way was of common convenience and necessity; and it was held that the land-owner was affected by this, and that he was entitled to object if such adjudication had not been made, as it was a necessary step before he could be deprived of his property. But in the question whether a recognizance be taken for costs, the petitioner has only the same interest with every other inhabitant of the town, and is in no other manner affected by it. A fourth ground is taken in support of the petition. By the last clause of Gen. Sts. c. 43, § 12, in reference to the relocation of existing highways, it is provided that “ the expense shall be assessed upon the petitioners, or upon the town or county, as the commissioners order.” The order of the commissioners relocated the street, assessed the damages to be paid by the town of Brook-line, and directed that the street as relocated should be constructed to their acceptance within two years. It further ordered, on condition the town of Brookline should pay all damages as [588] assessed, or such as might be found by a verdict of a jury, and should construct the street as required to their acceptance within two years, that if at the time of this acceptance, and at the expiration of said two years the said street should then be within the territorial limits of Norfolk County, there should be paid to the town of Brookline the sum of ten thousand dollars from the treasury of the county. It is contended on behalf of the petitioner that nothing in the statutes would warrant such an order. It was clearly within the power of the commissioners to put the whole expense upon the town of Brookline ; this by their order they have done. If there was a certain contingency in which they were willing to assess a certain portion of such expense upon the county, and they have seen fit to add thereto that, upon the occurrence of such a contingency, a certain sum should be repaid by the county, it cannot affect the validity of their adjudication. There has been a distinct adjudication that the widening was demanded by common convenience and necessity, the provision for repayment of a portion of the expenses is entirely separable from this, and even if such provision were void upon grounds of public policy, as contended by the petitioner, as being intended to influence political action, it would not affect the adjudication itself, which is not made upon the basis of it. Petition dismissed.