Baudistel v. Recorder & Common Council

Grant, J. (after stating the facts). Only one legal question is involved, in this controversy, viz., has the common council of the city of Jackson the right to vacate a portion of a public street upon the assent of all the adjoining landowners ? To state the question otherwise, it may be put thus: Has any member of the traveling public, or one who does not own adjoining lands, any such interest as requires the proceeding to be instituted in the courts for the purpose of vacating a part of a plat or street ? It is manifest that those living north of the railroad and east of the depot are not inconvenienced by the change in their access to the main business part of the city. The principal part of the city lies west of the depot. Some of those living north of the railroad and west of Park avenue, and between the next street east crossing the railroad north and south (which is not shown by the record), are obliged to travel a few hundred feet farther to reach that part of the city lying directly south of the railroad between these points. There is nothing to show that the common council did not act in entire good faith. It is apparent from the answer that the interests of the general public, when the safety and delay of travelers and business are considered, have been subserved. These were important considerations. In neither of the protests which were filed did the petitioners question the authority of the common council to act as they did. Now, the writ of certiorari is not a writ of right. It is a discretionary writ, and will not be used to enforce a strict legal right where justice cannot be done, and [363] where the petitioners are guilty of laches in failing to take prompt action. The petitioners were all the time fully cognizant of the proceedings of the council, and of the expenditures being made by the railroad company in furtherance of the proposed change, and yet they applied to no court to restrain such action. It is unnecessary to cite the many decisions of this court to the effect that where parties have stood by and seen public improvements made, and money expended, upon the faith of the validity of the proceedings, they cannot invoke the .conscience of the court, or make • use of discretionary writs, to enforce their legal remedies. For this reason the writ was improvidently issued, and will be dismissed, with costs. Montgomery, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.