Goodrich v. Commissioners of Highways

By the court, Gbeen, J. The only error complained of by ilie plaintiff in his affidavit, is, that the decision- of the township board,- affirming the acts of the commissioners, was- illegal and incorrect, and ought to' be reversed. In the case of the Commonwealth v. Winthrop, 10 Mass. 177, a tax had been assessed for the purpose of repairing a highway, by the court of common pleas for the county of Somerset. Subsequently the court of sessions for that county was- revived, with- jurisdiction- over assessments for such purposes, and the- records of the court of common- pleas relating to such assessments, were transferred, with such jurisdiction, to the revived court of sessions- Tho writ of certiorari- was issued to the chief justice of the circuit court of common pleas comprehending Somerset county, commanding him to certify the proceedings of the court relative to- the assessment of said tax. A return was made to- the-writ by the clerk of the court of common pleas, who was also-clerk of the court of sessions, for the county of Somerset, certifying the proceedings according to the command of the writ; but the court quashed the certiorari, as having issued improvideatly, and ordered a new writ to issue to the first justice of the court of sessions for the county of Somerset.- [387] So in tlie case of Bogart v. The Mayor &c. of New York, 7 Cowen 158, a certiorari was issued to the defendants, to remove the proceedings of the corporation of the city of New York, in widening a street, and the court held that the writ should have been directed to the judges of the supreme court, sitting as commissioners: most of the proceedings sought to he questioned, being before them as commissioners) though it was said that some of them remained with the defendants; and the writ was quashed on the ground that it was both misdirected, and not allowed on cause properly shown. In the case now before this court, the respondents are only required to certify in relation to the matter in difference between Goodrich, appellant, and the commissioners. This confines them to what appeared before the township board, in the proceedings upon the appeal, for it was only there that the plaintiff appeared in the character of appellant, or where he and the commissioners assumed the attitude of adverse parties. Considering, also, that the only error complained of, is the decision of the township board upon the appeal, it is very apparent that all the plaintiff has sought to bring up by this writ, is the proceedings before the board upon his appeal; and it also seems very clear, that, for this purpose, the writ should not have been issued to the commissioners of highways, but that, if the plaintiff has any remedy by certiorari, to correct any error of the township board in the premises, his writ must be directed to the officers before whom the proceedings sought to be questioned remain. The writ of certiorari in this caso must be dismissed, with costs to the respondents. Certiorari dismissed.