Walton v. Greenwood , 60 Me. 356 ( 1872 )

Barrows, J.

Obviously there are insuperable technical objections to the maintenance of this process, which seems throughout to have been irregular and inapplicable to the case as stated by the petitioner.

The prayer of the petition is, ‘ that a writ of prohibition may issue to said court of county commissioners (meaning the respondents), prohibiting them from causing the records and files in the various county offices in Somerset county to be removed to Skowhegan, and from causing notice of that fact to be published in certain news papers, as provided in § 4 of an act of the legislature approved Feb. 15, 1872.

1. The petition is subscribed and sworn to by Sylvester J. Walton as county attorney for Somerset county, and the only persons or parties named as respondents therein, are ‘ Albert N. Greenwood, John Russell, and Sylvanus B. Walton, county commissioners of Somerset county.’

Proper and competent parties are indispensable in every legal process. The petitioner here asserts no personal grievance. He undertakes to intervene in behalf of the county and to represent it in this proceeding. In view of R. S., c. 78, § 10, which confides this power in express terms to the county commissioners, we do not think it competent for the county attorney to interfere of his own motion in behalf of the county in this manner. Under the section referred to, the county commissioners are to ‘ represent ’ the county, — are ‘ to have the care of its property and the management of its business.’ They are responsible directly to the people who elect them for the manner in which they discharge their duties. But while they are in office, they, and not the county attorney are to represent the county in business of this description, and the county attorney acts under their direction and simply as an attorney, in the matters in which the county is interested.

It is true, that in cases where a writ of prohibition appears to be necessary to keep an inferior court within the limits of the jurisdiction prescribed by the laws and statutes of the State, it may issue at the suggestion of, or upon information laid by, either of the parties or by a mere stranger. Bacon’s Abr., Yol. IY, p. 243, tit. Prohibition (C).

It may well be, that if the county attorney or any other citizen of the county, acting in his individual capacity, laid before us an information, suggesting that the court of county commissioners were usurping any authority over the county records not given them by the statutes of the State, or were exercising their powers in a manner unauthorized by law, we should feel bound to listen to his proofs, and apply the remedy required. But it does not follow that when, as in this petition, he assumes to speak ‘ for and in be half of the county of Somerset,’ in his official capacity onfy, we can disregard the remonstrance of these respondents, claiming that they alone legally ‘ represent ’ the county, and ‘ have the care of its property, and the management of its business,’ and that the county attorney has no right, in the name of the county or in his official capacity, to institute a process of this nature.

2. But if there is a want of a proper party plaintiff, it is equally apparent, that inasmuch as the writ of prohibition, if granted, operates against the party adversely interested, the town of Skowhegan has such an interest in the question here presented, that it ought to be made a party respondent and have notice of the pendency of this petition.

To proceed without such notice to the town would violate the fundamental rule that, in all suits in courts of common law, a service upon the persons or parties adversely interested is indispensable. Ex-parte Davis, 41 Maine, 59; Penobscot R. R. Co. v. Weeks, 52 Maine, 456.

3. This case pomes before us only upon exceptions filed to the rulings and adjudication of the judge presiding at nisi prius. The question presented is, were the rulings and decision erroneous as to matters of law ?

What is called ‘ the proof of the suggestion,’ or, in other words, the question whether the facts alleged in the information, upon which the claim for the prohibition is founded, are substantially true as alleged, was submitted to him, and upon well-known rules his decision upon that question is binding and conclusive, and cannot be reviewed on exceptions.

Now the exceptions themselves state that he decided ‘ that the conditions of the act to change the place of holding the supreme judicial court for the county of Somerset, and to change the shire town of Somerset county, approved February 15, 1872’ (and above referred to), ‘ had been complied with.’ If this were so, then the county commissioners were expressly required, by the act referred to, to do that which the petitioner asks us to prohibit.

The gravamen of the petitioner’s complaint appears to be that these conditions have not been complied with, and this is alleged, with much detail and divers specifications, as a reason why the prohibition should be granted.

The finding of the judge as set forth in the exceptions negatives these allegations directly, and this should have been the end of the case. It has been so often held, that exceptions do not lie to correct error in the decision of questions of fact, that a citation of authorities is needless. This precise point seems to have been in the mind of the judge when he certified the exceptions as ‘ correct and allowed if exceptions will lie. in the case.’ The order of the presiding judge, dismissing the temporary prohibition and the petition, was in perfect accordance with the long-settled course of proceeding upon applications of this sort, and the petitioner had no ground for complaint thereof. For ‘ though a surmise be matter of fact and triable by a jury, yet it is in the discretion of the court to deny a prohibition when it appears to them that the surmise is not true.’ Aston Parish v. Castle Birmidge Chapel, Hobart, 67.

‘ When a prohibition is moved for, the method is for the party to file a suggestion in court, stating the proceedings that have been had in the court below, and then suggesting the reason why he prays the prohibition; upon this the court grants a rule for the other party to show cause why a writ of prohibition should not issue ; and if it appear to the court that the surmise is not true or not clearly sufficient to ground the writ upon, they will deny it.’ Bac. Abr., Vol. IV, tit. Prohibition (A) in notes.

It is only when the cause alleged is seen to be true and clearly sufficient, that the prohibition is granted.

While it it thus evident, that, whatever might be the general merits of the petitioner’s case, this process must fail; yet, inasmuch as those merits have been elaborately discussed by counsel, and as the matter involved possesses sufficient local interest and importance to make it probable that the main questions, if not now settled, would be presented in some other form, we think it best not to base our judgment exclusively upon objections simply technical, but to give the positions taken in behalf of those opposed to the removal of the county seat from Norridgewock to Skowhegan, a deliberate and careful consideration.

The case is this. Section 3, of the ‘ act to change the place of holding the supreme judicial court in the county of Somerset and to change the shire town of Somerset county runs thus : ‘ The previous sections of this act shall be void and of no effect unless the town of Skowhegan, or its citizens, shall on or before the first day of March, in the present year, without expense to said county of Somerset, provide suitable room and other accommodations for said court and officers, to the acceptance 'of a majority of said county commissioners, and shall execute and deliver to them a good and sufficient lease or other instrument, to secure the use thereof to said county, for the purpose aforesaid, during said five years, if the same shall be occupied so long, for the purposes specified in this act, and shall also convey or secure the conveyance in like manner, of a suitable site for county buildings in said Skowhegan.’ Hereupon it is argued that here was an unconstitutional delegation of the power of legislation to the town of Skowhegan, or its citizens, at whose option the act was to be void, and that there are constitutional objections to a piece of legislation which makes the place where the courts shall be holden in a county, to . depend upon the acts or omissions of any particular town or its citizens, and the judgment of the county commissioners thereupon. We do not find either in the letter or the spirit of the constitution anything which forbids the legislature to attach conditions of this description to their acts. Upon the wisdom or expediency of so doing, it is no part of our duty to express an opinion. Of that, the law-making power, commissioned by the people for that purpose, must judge. Our office is to give a just and proper interpretation to all these clauses as we find them spread upon the statute-book, and to hold them valid and binding, unless they appear clearly to be repugnant to the constitution of this State or to that of the United States.

The conditions are as much part of the act as the positive provisions to which they are subjoined, and which they qualify. The whole taken together, expresses the will of the legislature in the form of law, and, not being in conflict with any constitutional • provisions, but on the other hand being sanctioned by numerous precedents, must be held valid and binding.

Again it is urged that the act has become void under its own provisions, by reason of an alleged non-compliance with its conditions.

The conditions are found in § 3 above recited, and in substance were that the town of Skowhegan, or its citizens, should on or before March 1, 1872, without expense to the county, provide suitable room and other accommodations for this court and the county officers to the acceptance of a majority of the county commission ers, and give a good and sufficient lease or other instrument to secure the use thereof to the county for five years, if so long needed, and ‘ convey or secure the conveyance in like manner of a suitable site for county buildings in said Skowhegan.’

These several matters are required to be done to the acceptance of a majority of the existing board of county commissioners, who in all business matters represent the county, and are charged, by law, with ‘ the care of its property and the management of its business.’ Were the several conditions fulfilled?

It appears that they were, at all events, to the full satisfaction, not of a majority merely, but of the entire board. The justice of this court, who presided at the term, seems to have so found in express terms; and the diligence and acumen of the petitioner’s counsel, though fruitful in surmises and suggestions, fail to raise in our minds a serious doubt that there was a substantial compliance with all the conditions of the act.

We remark, in the outset, that wherever the legislature made the county commissioners the judges of the suitableness of the accommodations to be furnished, and of the sufficiency of the securities to be given, by providing for the performance of the condition ‘ to the acceptance of a majority ’ of the commissioners, the judgment of such majority, in the absence of proof of fraudulent connivance, must be deemed final and conclusive, and not subject to revision by any tribunal whatever.

The county commissioners, besides being the general business agents of the county, were specially empowered and directed by this act to cause the removal and publication, which the petitioner asks ns to prohibit, when the rooms for the accommodation of the court and officers have been provided as specified in the third section, i. e. to the acceptance of a majority of said county commissioners.

From the nature and necessities of the case, the provision can only be construed as confiding to the commissioners an unlimited discretion and power to determine whether the conditions had been so performed that they ought to be accepted, and, in case such was their judgment, to accept them, and forthwith to act in pursuance of their decision.

And that decision is not to be revised for mere errors in judgment, and cannot be impugned for anything short of corruption and fraudulent collusion, of which there is here no pretence.

Such we believe to have been the uniform current of decisions in analogous cases. We see not how it could be held otherwise, in the present instance, without involving the whole course of legal proceedings in the county at every step in inextricable confusion and uncertainty.

We think this substantially covers the whole case. The commissioners executed in good faith a power which was intrusted to them by the legislature with full knowledge of their liability to err; and their decision of the questions necessarily involved, right or wrong, must be held conclusive. It would be a strange and totally inadmissible construction of the legislative act, which would involve the administration of justice in that county in such uncertainty as must prevail until a final decision was reached, if it were made to depend upon the view which another fallible human tribunal might take of the legal accuracy of the judgment of the commissioners.

While this construction of the act (which we adopt upon the fullest consideration) must be decisive of the case against the petitioner, we have not omitted to review the various points where in it is claimed that the commissioners erred ; and we think that a detailed examination of them would lead to the same result.

At nisi prius it seems to have been conceded, that the certificate of the county commissioners was full and satisfactory evidence that the full condition, which calls for the provision of ‘ suitable room and other accommodations ’ for the court and county officers, had been complied with. Now, however, the ingenuity of counsel has discovered that a jail, or at least a substitute for one, should have been included in these accommodations, and that, notwithstanding they were found satisfactory by the county commissioners, they are in other respects deficient.

The case is devoid of any evidence to impeach the commissioners’ certificate in any particular. We could not accept the assertions of counsel in lieu of evidence; and, moreover, we are clear that the language of the condition does not. require the town or its citizens to furnish a jail. Compare the language used with that of Laws of 1865, c. 384, § 3, touching the same subject.

It is insisted that the leases which have been given and accepted,, to secure the use of these rooms for the five years, if so long required, are invalid, and divers suggestions are thrown out in derogation of the title and authority of those by whom they purport to-have been made. But not one of these suggestions is sustained by any proof, and we fail to see that they have any foundation, either in law or fact. Power to do any specific act, embraces the power to do all that is incidentally necessary to its accomplishment. The-town of Skowhegan unquestionably has authority under the act to-hire the apartments to be leased to the county; and it seems-to-have been done by the selectmen, not only in their capacity as the-prudential agents of the town, but as a special committee duly authorized by a vote of the town at a legal meeting.

The objections to the title and authority of the leases of the town, are equally wanting in the proof that was necessary to give them any vitality. That surely ought to be deemed sufficient which accomplishes the purpose for which it was designed. The county has undisturbed possession of the premises by virtue of these leases, and we see no good cause to question their validity. Omnia prcesumuntur rite acta, at least, until some scintilla of evidence appears to the contrary. So long as the county has the enjoyment of the premises which the leases were designed to secure, neither the petitioner nor any other inhabitant of the county seems to have any substantial ground of complaint on that score.

Particular stress is laid upon the alleged failure to ‘ convey or secure the conveyance in like manner of a suitable site for county buildings in said Skowhegan.’ The commissioners accepted, as a fulfillment of this condition, the bond of ‘ the town of Skowhegan and the inhabitants thereof,’ to the county of Somerset and the county commissioners of said county, executed in behalf of the town by the selectmen in their official capacity and acting also as a committee specially authorized therefor, agreeing ‘to convey to said county in such form and at such time within five years of this date, as they may require, a suitable site for county buildings in said Skowhegan ... to the acceptance of the county commissioners of said county.’

We see no good reason to question the validity and sufficiency of this obligation to secure the conveyance of a suitable, site for the county buildings at any time within five years, when a majority of the county commissioners shall see fit to exercise the power given them, in § 2 of the act, to erect such buildings. The legislature required either the conveyance of a suitable lot, or security that such conveyance should be forthcoming when necessary. The commissioners accepted the security above described.

It is argued that here was a misconstruction of the statute^ which constituted their authority to act in the premises. If it were manifestly so, we might be justified in interfering with a writ of prohibition.

But we think that the better opinion is, that the legislature did not intend to make the selection of a site within fifteen days after the passage of the act an indispensable pre-requisite to its taking effect. The county commissioners were to erect the county buildings at such time as they might select within five years, and the design of the clause under consideration was, to secure the conveyance without expense to the county, of such a site as should be acceptable to the county commissioners.

We think the condition is fulfilled by securing the conveyance of a suitable site which shall be acceptable to such board of county commissioners as shall initiate the erection of the buildings, and that tins is accomplished by the bond of the town.

The bond is in substance and effect a security for the conveyance of such a lot as the county, through its commissioners, may deem suitable ; and if the town should fail to convey according to their agreement, they must be held to pay for such lot as the commissioners may reasonably select when they proceed to build. The alternative of conveying or securing the conveyance seems to have been designed to enlarge the time for selection to the manifest advantage of the county.

Even if we did not consider the acceptance of the bond by the commissioners conclusive, we should be ready to hold that, as to this item, as well as all the others, the conditions prescribed by the ' act had been substantially complied with.

Exceptions overruled.

Appleton, C. J.; Kent, Walton, and Dickerson, JJ., concurred.