Chase v. Town of Rutland

The opinion of the court was delivered by Ross, J. By the terms of the statute allowing exceptions in this class of cases, the judgment of the county court is not to be reversed; “ unless the supreme court would have granted a writ of certiorari for the same cause.” Acts of 1872, No. 38, § 2. The granting of the writ of certiorari is, in a large measure, discretionary. Although this court may be satisfied that error has been committed by the county court, it will not grant the writ unless it is satisfied that some substantial injustice has been done by the action of that court to the party praying for the writ. Sec. 11, ch. 30, of the Gen. Sts., confers power upon this court to issue the writ of certiorari, and the other writs there named, only when they “shall be necessary to the furtherance of justice and the regular execution of the laws.” Hence, the necessity for the party asking to have the writ issued, to show that some substantial injustice has been done by the action of the county court. This principle has repeatedly been announced by this court. Myers et als. v. Pownal, 16 Vt. 415; West River Bridge Co. v. Dix et als. 16 Vt. 446; Pomfret v. Hartford, 42 Vt. 134. This court will not assume that the irregular action of the county court has worked injustice. That fact must be made to appear affirmatively, in order to warrant this court in granting the writ and ordering the record to be certified from the county court to this court. Lyman v. Burlington, 22 Vt. 131; Pomfret v. Hartford, 42 Vt. 134; Londonderry v. Peru, 45 Vt. 424. No substantial injustice is apparent from the exceptions. It is not slated or claimed that Mr. Goss, the commissioner who is alleged to have been disqualified to act as such, acted unfairly, or with partiality, in finding and reporting that the public good required that the highway petitioned for should be laid. Neither does it appear that the public good did not require the establishment of that highway. From this failure to make it apparent that any substantial injustice could or did flow to the defendant from the [398] action of the county court, this court might well refuse the defendant any benefit from its exceptions. II. But the other question, whether the fact that a commissioner appointed by the county court to inquire into the public necessity for the establishment of the highway petitioned for, is related to one of the petitioners within the fourth degree of affinity, disqualified such commissioners from acting in the premises, is one of considerable practical importance. It has been fully argued, and is solely relied upon by the defendant for the reversal of the action of the county court in accepting the report of the commissioners and establishing the highway. It is a question, also, which this court has never passed upon, so far as we are informed. Hence, we have been led to examine it, although we might have disposed of the exceptions on the other ground. The county court in laying out and establishing highways, is performing a duty and exercising a power conferred by statute. It is not acting in its capacity of a common-law court. It does not proceed according to the course of the common law. Its action in such cases is a sessions proceeding, regulated by the- statute. No declaration nor pleadings are required. There are no parties between whom a right is adjudicated, as there are in actions at law. The adjudication of the court between the petitioners and petitionee, is not conclusive in the same sense it is between parties in actions at law. The petitioners, notwithstanding the refusal of the court to grant the petition, can at any time renew it, and are not estopped by the former refusal of the court to grant it. If the petition is granted, the petitionee is not barred from immediately seeking the discontinuance of the established highway. It is true, the court would not be likely to reverse its judgment on the preference of a new petition, unless a change in the circumstances and requirements of the public in that particular, was shown. The petitioners are private complainants, alleging that the town has failed to discharge its duty to the public, and asking that it may be compelled to discharge that duty.' The powers of the court, though involving to a great degree the exercise of judgment and discretion, are administrative rather than judicial. It has no direct jurisdiction to decide upon contested rights between [399] party and party, though its decision collaterally and incidentally affects the rights of municipalities and individuals to a considerable extent. The power is conferred and the proceedings are instituted, to have the county court inquire whether the public good requires the establishment of the highway, and if so, whether the discharge of this duty belongs to the petitionee in whole or in part. The court is empowered to administer and enforce this public right, rather than to adjudicate any contested right existing between the parties. The duty of making the inquiry and of enforcing the right, might as well have been conferred upon any other body or organization as upon the county court. The petitioners’ interest in having the inquiry made and the right enforced, may be greater or less than that of other members of the body politic. They have no right to have the inquiry made because it is a right which pertains to them as individuals, but because it is a right which pertains to the public, of which they constitute a part. The commissioners are officers of the court, appointed by the provisions of the statute, to aid the court in making the inquiry. Neither the court nor petitionee is concluded by the finding of the commissioners in favor of the petitioners in regard to this right. If the petitionee excepts to their report establishing the right — not in the petitioners, but in the public— to have the highway constructed, alleging that the public good does not require that the highway should bo built, it is the duty of the court to make the inquiry for itself, treating the finding of the commissioners only as prima facie evidence of the existence of the right. In respect to its conclusiveness upon the court, there is a wide difference between the report of such commissioners and the verdict of a jury or the report of an auditor. The latter are usually conclusive in regard to the facts found. The statute prescribes no qualifications for commissioners, other than that they must be disinterested freeholders residing in some town other than the petitionee. The question is, whether in a proceeding of this nature, with the petitioners sustaining such relations to the proceedings, the commissioner Goss was disqualified by reason of his relation to one of the petitioners? Was he thereby an interested rather than a disinterested freeholder ? It is not every possible [400] interest which will disqualify a person from acting in that capacity. It is not contended that such relation to a tax-payer of the petitionee, would disqualify a person from acting as commissioner. The interest of such tax-payer in the proceeding would be too remote. It would not be so directly involved in the determination of the right, that it would work a disqualification of a person related to him, from acting as commissioner. It is evident the legislature did not contemplate that such relation to a tax-payer, should work a disqualification. It would be very difficult, not to say impossible, to select commissioners so as to avoid any relation to every tax-payer of the defendant town. But the petitioners are no more interested in, or bound by, the proceedings, than any tax-payer of the defendant town, except in the costs. As a wholesome restraint against the presentation of unfounded petitions, the petitioners are made liable for costs if the petition fail. The town is also liable for costs if the petition prevail, and for the expense of building and maintaining the highway in whole or in part. The property of any tax-payer may bo taken to satisiy the judgment against the town for the costs. The difference between the interest of a petitioner and that of a tax-payer in the defendant town in such proceedings, is only one of degree or amount. It is difficult, in principle, to distinguish them, or to see any good reason for holding that such relation to a petitioner should disqualify, and to a tax-payer should not. In strictly judicial proceedings, remote interest does not disqualify the magistrate. It has been held that the interest of a justice of the peace in the event of a criminal proceeding, by reason of the fine, if imposed, being payable to the treasurer of the town of which he is a ratable inhabitant, or of the town being liable for the costs of the prosecution, if no fine should be imposed, is not such an interest as works a disqualification of the justice; that such izztez-est is too remote, and is not such an interest as the statute contemplates. By analogy, we think the interest of the petitionez-s in a highway case, is too remote to work a disqualification to one from acting as commissioner, by reason of his being z’elated to such' petitioner. By “ disizitez’ested freeholder,” we think the legislature intended one who was so situated that the establishment of the highway, [401] or refusal to establish it, would not directly affect his pecuniary interest, and that it was not intended to exclude, and does not exclude, every one who happens to be related to one of the petitioners within the fourth degree of affinity. We understand this is the construction which the late Chief Justice Redfield gave in the county court to this language of the statute, in a proceeding against the town of Wilmington, in Windham county. The same construction has been given to a similar statute in Massachusetts. Wilbraham v. County Com’rs of Hampden, 11 Pick. 322. The duty of hearing and determining petitions for the establishment of highways, by the statutes of Massachusetts, was given to a special board of county commissioners. The case arose on a petition for a writ of certiorari, to quash the proceedings of the commissioners in laying out and establishing a highway in a town in which one of the commissioners was a ratable inhabitant, on a petition signed by his son and brother, with others. The petitioners, by force of the statute, were liable for costs if the establishment of the highway should be refused. A special commissioner could have been called in, to -act in the place of the one so interested and related to the petitioners. The court held, Chief Justice Shaw delivering the opinion, that the commissioner was not disqualified, and refused to issue the writ, on the ground that the commissioner’s interest was too remote. The causes for disqualification were analagous to, but stronger than in, the case at bar. That case furnishes a good illustration of what interest will not disqualify a member of a board which had as complete power in the establishment of highways as has the county court in this state. If such interest would not disqualify a member of the county court, much less would that interest in a commissioner, whose action and findings do not conclusively bind the court, render the action of the court in accepting the report erroneous. Judgment affirmed.