John Ward vs. Board of Aldermen of Newton & others

Massachusetts Supreme Judicial Court1902-05-22

181 Mass. 432

Summary · law.co

Holding. The court affirmed the judge's exclusion of evidence at the preliminary certiorari hearing. A petitioner seeking certiorari may respond to external facts raised by the respondent but cannot introduce his own extraneous evidence to retry the underlying administrative decision; he may only challenge legal errors apparent on the record itself.

Ward sought a writ of certiorari to overturn street-watering assessments levied on his properties. The Board of Aldermen assessed the charges by front footage under state law. Ward argued the assessed lots received no benefit or insufficient benefit to justify the tax, and he attempted to introduce evidence at the preliminary hearing before the judge to support this position. The judge excluded that evidence, and Ward excealed.

The court clarified the proper scope of certiorari proceedings. A writ may issue only to correct legal errors visible on the face of the record. At the preliminary stage when a judge decides whether to issue the writ, he may hear evidence on matters outside the record to determine whether issuing the writ serves justice. However, if the respondent relies on such external facts to challenge the writ's issuance, the petitioner may only respond to those facts—he cannot use the preliminary hearing to retry the underlying decision or introduce his own extraneous evidence. Here, the Board's answer alleged it based the assessment on a finding that it was less than both the cost and the benefit conferred. This allegation was unchallenged and supplied a missing factual predicate. Once the Board asserted justifying facts, Ward's attempt to present competing evidence amounted to an improper attempt to retry the Board's judgment at the preliminary stage.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Proper scope of evidence admissible at preliminary stage of certiorari proceedings
Distinction between reviewing legal error on the record versus retrying factual disputes
Role of extraneous facts in discretionary denial of certiorari writ
Assessment validity under benefit principle and statutory requirements

Procedural posture

Ward petitioned for a writ of certiorari to quash street-watering assessments; a single justice held a preliminary hearing, excluded Ward's evidence, and declined to issue the writ; Ward appealed the evidentiary ruling.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Holmes, C. J.

This is a petition for a writ of certiorari to quash assessments for street watering in front of three tracts of the petitioner’s land. The assessment was by the front foot under St. 1897, c. 419, § 2. The petition alleges facts which make it seem unlikely that the two lots on Beacon Street, which alone are in question before us, could have received any benefit, or at least a benefit equal to the amount of the tax, and the record proper discloses no preliminary adjudication by the board that there was such a benefit. The return or answer alleges, however, that the assessment was much less than the cost and less than the benefit conferred, and, what is more important, that the board based their determination upon these facts. The answer also sets forth various facts intended to corroborate the conclusion of the board, and the allegations are traversed and replied to by the petitioner. When the case came on for hearing, the petitioner desired to go into evidence upon these matters and excepted to a ruling which excluded it.

Both parties seem in their pleadings to have lost sight of the scope of certiorari as explained in Farmington River Water

Power Co. v. County Commissioners, 112 Mass. 206, and Tewksbury v. County Commissioners, 117 Mass. 563. The writ can issue only to correct errors of law apparent on the face of the record when properly extended. But, as the petition for the writ is addressed to the discretion of the court, a respondent sometimes may set up extraneous matters which show that, even if the record does disclose an error, still justice does not require it to be quashed. The application is made to a single judge, and he can go into evidence at that stage. If the extraneous matters are proved and are sufficient, the judge will secure justice by refusing to issue the writ. He necessarily deals with the matter in this way, outside the record proper, because at a later stage, when the writ has issued, such facts are immaterial. If the record discloses error, it must be quashed. There is no choice, except so far as the common law is modified by statute. Pub. Sts. c. 186, § 9. R L. c. 192, § 4. Other instances are familiar to the law, in which, to avoid an improper use of technical rules, the court makes a preliminary inquiry of fact upon a matter which could not be pleaded. Troeder v. Hyams, 153 Mass. 536, 538.. If then such facts are set up against the preliminary step of issuing the writ, the petitioner may answer them. But that is all. As a general rule at least, he cannot make a case outside the record; he can do no more than reply to matters touching the discretion of the court. This is obvious not only from the authorities cited but from the reason of the thing. For, supposing the writ to issue, nothing then would be before the court except the writ and the tenor of the record returned. This court could not retry the case but could only quash, or affirm, or in the statutory way modify the proceedings as they appeared bad or good on inspection. See further Rutland v. County Commissioners, 20 Pick. 71, 77, 78; Mendon v. County Commissioners, 5 Allen, 13, 16; Commissioners of Highways v. Harper, 38 Ill. 103, 107. Of course in a proper case the petitioner, upon alleging errors of law, may have made, by way of extending the record, such a statement of the material facts and the rulings of the inferior tribunal as will enable the court to determine the questions of law. Mendon v. County Commissioners, 2 Allen, 463.

In the case at bar, the allegation in the answer that the re spondents based their assessment upon a determination that it was less than the cost and less than the benefit conferred supplied a fact that did not appear unless by implication in the record proper. This allegation could not be and was not controverted. But when the answer went on to allege facts justifying the judgment of the respondents, it gave an invitation to retry their decision which the petitioner naturally was nob slow to accept, but which the judge very properly declined to allow to be carried out. The judgment of the board was conclusive except so far as the record disclosed that it was beyond their power, unless for error of law in the finding and no such error was alleged.

J. E. Bates, for the petitioner.

W. S. Slocum, for the respondents.

The return appended a map of the premises assessed, and it appeared from inspection that one of the petitioner’s lots had a front of three hundred and ninety feet and a depth varying from fifteen feet to eighteen inches. The single justice thought it manifest .that the assessment on this lot could not be valid under Sears v. Boston, 173 Mass. 71, 79, 80, and Weed v. Boston, 172 Mass. 28, 32. With that we have nothing to do. But he rightly held that there was nothing before him to show that the other assessments were bad, as matter of law, under those decisions, or in minor points under St. 1897, c. 419, §§ 2, 3. See further French v. Barber Asphalt Paving Co. 181 U. S. 324, and following cases, through p. 404. The only question before us, however, is whether the exclusion of evidence in support of the petition and traverse was proper. For the reasons which we have given, we are of opinion that it was right.

Exceptions overruled.