Farmington River Water Power Company v. County. Commissioners. necticut, on the Farmington River, together with said Canfield, and one Albert Hull who owned manufacturing establishments in Otis and Sandisfield in this county, by joint effort and contribution created at great cost (say forty-four thousand dollars), an immense stone dam substantially upon the site of the Wells dam, and thereby flowed another large tract of land in addition to that previously flowed by the Wells dam. And the land so flowed was purchased of the owners and was conveyed to said Canfield. The said Canfield subsequently conveyed his interest in the reservoir dam and lands, including the lands acquired for the Wells reservoir as well as the lands acquired for the new reservoir, to one J. B. Foster in trust for the parties who had erected the new reservoir, reserving to himself certain water rights and privileges in favor of his said iron works, in said Otis.

"That after the act incorporating the complainant corporation, to wit, August 15, 1867, the said Foster conveyed the same to the complainant corporation. That the stock in this corporation was wholly taken and has continued to be held by those who contributed to the erection and purchase of the said reservoir, and the stock of each was to the amount each had contributed. That the reservoir was built to supply the manufacturing establishments of the stockholders with a more uniform and permanent flow of water, which establishments are in the State of Connecticut, excepting the tannery of Hull and the iron works of Canfield. That the stockholders of said corporation manage and control its affairs as they think proper, and they enjoy, have, and possess at their several establishments, the uses and benefits of said reservoir, according to their pleasure and just as they contemplated at the time of the construction thereof. These uses and benefits are of great value to them, and almost, if not quite, indispensable a considerable portion of every year, to the success and prosperity of the aforesaid manufacturing establishments. That by this reservoir town and county roads and bridges were submerged, and others were required and built instead by the complainant, at its own expense.

"The corporation made a road upon and over the top of its dam and along the west side of the pond, in place of a town way

Farmington River Water Power Company v. County Commissioners.

and bridge submerged, and at its request the selectmen of Otis laid it out as a town way, and the town conditionally accepted it, which vote was as follows: Voted, that the town establish the road as laid out by the selectmen, commencing near the house formerly owned and occupied by Lewis Clark and terminating near the house now owned and occupied by Wm. Clark, provided that William J. Canfield, or his heirs and assigns, will build the road to the acceptance of the selectmen, and pay all damages caused by laying and building of said road and save the town harmless from all expense, and to keep the road in repair across the dam and support railing on said dam.'

"That the assessment by the town of Otis of the tax for 1869, was in no part laid on land originally covered by natural ponds prior to the erection of the Wells dam, but on land which was purchased and flowed by Wells, and on lands in addition thereto which were purchased and flowed by the new stone dam of complainants, and the number of acres so assessed were the same as given in to the assessors as belonging to the complainants.

"And now these respondents, to wit, the county commissioners and the inhabitants of Otis, respectfully submit that the Supreme Judicial Court will not canvass the evidence laid before the commissioners with the view of drawing inferences and establishing facts therefrom, but will assume as true the facts found by the commissioners.

"The substantial fact found by the commissioners was that the complainant corporation was not taxed more than its just proportion and was not overrated, and therefore they dismissed the petition for abatement, as appears from their record which is at tached to the petition in this case. And the respondents submit that the finding of facts from the evidence before them by the commissioners is final upon all matters of fact, and that their doings, findings, and judgments were in all respects just and without error, and that the complainant corporation shows no cause entitling it to the writ of certiorari as prayed for.

"County Commissioners, by Wilcox & Bowerman, Attorneys. "Inhabitants of Otis, by Wilcox & Bowerman, Attorneys."

Farmington River Water Power Company v. County Commissioners.

The case was reserved by Ames, J., for the consideration of the full court. If the court should be of opinion that the respondents had the right to file the answer, and that it constituted a good defence, then the cause was to be continued for such further hearing upon the facts set up in the petition and answer, and such other proceedings as should be determined by the court were open to the petitioners; and if the respondents had not such right, the writ of certiorari was to issue.

M. Wilcox, for the respondents.

H. L. Dawes & T. P. Pingree, for the petitioner.

GRAY, C. J. By the Gen. Sts. c. 145, § 8, "writs of certiorari to correct errors in proceedings that are not according to the course of the common law shall be issued from and returnable to the Supreme Judicial Court according to the practice heretofore established." The determination of this case must be governed by the law and practice so established, which do not seem to have been kept in mind by either party to these proceedings.

A writ of certiorari (when not used as ancillary to any other process) is in the nature of a writ of error, addressed to an inferior court or tribunal whose procedure is not according to the course of the common law. After the writ has been issued and the record certified in obedience to it, the court is bound to de termine, upon an inspection of the whole record, whether the proceedings are legal or erroneous; but the granting of the writ in the first instance is not a matter of right, and rests in the discretion of the court, and the writ will not be granted unless the petitioner satisfies the court that substantial justice requires it. Commonwealth v. Sheldon, 3 Mass. 188. Ex parte Weston, 11 Mass. 417. Lees v. Childs, 17 Mass. 351. Freetown v. County Commissioners, 9 Pick. 46. Rutland v. County Commissioners, 20 Pick. 71. Gleason v. Sloper, 24 Pick. 181. Marblehead v. County Commissioners, 5 Gray, 451, 453. Pickford v. Mayor & Aldermen of Lynn, 98 Mass. 491.

A writ of certiorari lies only to correct errors in law, and not to revise a decision of a question of fact upon the evidence introduced at the hearing in the inferior court, or to examine the sufficiency of the evidence to support the finding, unless objection

Farmington River Water Power Company v. County Commissioners.

was taken to the evidence for incompetency, so as to raise a legal question. Hayward's case, 10 Pick. 358. Nightingale's case, 11 Pick. 168. Cousins v. Cowing, 23 Pick. 208. Stratton v. Commonwealth, 10 Met. 217. In Nightingale's case, Mr. Justice Wilde said: "We cannot on certiorari examine the merits of a cause and set aside a verdict as against evidence." And even if incompetent evidence was admitted, the court in its discretion will refuse a certiorari if the fact in question was clearly proved by other evidence. Cobb v. Lucas, 15 Pick. 1. Gleason v. Sloper, 24 Pick. 181.

The refusal of the county commissioners to abate a tax cannot be revised upon certiorari, except for an erroneous ruling in matter of law. Gibbs v. County Commissioners, 19 Pick. 298. Chicopee v. County Commissioners, 16 Gray, 38. Lowell v. County Commissioners, 6 Allen, 131. The Legislature has evidently considered the county commissioners a more appropriate tribunal to decide questions of fact in the matter of taxation than a court of common law or a jury.

The provision of the Gen. Sts. c. 145, § 9, reënacting the St. of 1858, c. 109, and empowering the court, upon certiorari, to "enter such judgment as the court below should have rendered, or make such order, judgment, or decree in the premises as law and justice require," does not enlarge the authority of the court to examine the matters passed on below, but merely enables it, after examining the case according to the rules of law, to embody the result in a new judgment, framed so as to secure the rights of all parties, instead of being limited, as it was before the statutes were amended in this respect, to quashing or affirming the judgment below. Commonwealth v. West Boston Bridge, 13 Pick. 195, 196. Lowell v. County Commissioners, 6 Allen, 131. Haverhill Bridge Proprietors v. County Commissioners, 103 Mass. 120.

If a question of law is raised at the hearing before an inferior court, whose proceedings are not according to the course of the common law and not the subject of appeal or exception, it is proper state on the record the facts proved and the ruling in tter of law upon them. Commonwealth v. Walker, 4 Mass.

Farmington River Water Power Company v. County Commissioners.

556, 558. And if this is not done, the inferior tribunal may be required by this court to certify, together with its record, a state ment of the ruling made upon the point set out in the petition for a certiorari. Mendon v. County Commissioners, 2 Allen, 463.

But whenever the case was within the jurisdiction of the inferior tribunal, the petitioner for a writ of certiorari cannot be permitted to introduce evidence to contradict or vary its statement, in its record or return, of its proceedings and decision. Pond v. Medway, Quincy, 193. Commonwealth v. Blue Hill Turnpike, 5 Mass. 420. Rutland v. County Commissioners, 20 Pick. 71. Mendon v. County Commmissioners, 5 Allen, 13. Charlestown v. County Commissioners, 109 Mass. 270.

It is only where extrinsic evidence has been introduced, at the hearing upon the petition, in support of the decision below, and by way of showing that substantial justice does not require the proceedings to be quashed, that like evidence may be introduced by the party petitioning for the writ, and then upon the same point only. New Salem, petitioner, 6 Pick. 470. Rutland v. County Commissioners, 20 Pick. 71. Gleason v. Sloper, 24 Pick. 181. Stone v. Boston, 2 Met. 220, 228.

A writ of certiorari must be addressed to the court having the custody and control of the record of the proceedings sought to be quashed. Commonwealth v. Winthrop, 10 Mass. 177. It can only be granted after notice and opportunity to show cause against it; and, if granted without such notice, will be quashed as improvidently issued. Commonwealth v. Downing, 6 Mass. 72. When the proceedings were before county commissioners, notice of the petition should be given to them, the answer or return to the petition must be the joint act of the whole present board, and the separate answer of one commissioner cannot be received. Plymouth v. County Commissioners, 16 Gray, 341.

The uniform practice of this court for many years, as shown in numerous reported cases, has been 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, untrammelled by merely formal and technical defects in the record.