
    The Inhabitants of Wilbraham versus The County Commissioners of Hampden.
    The circumstance that a county commissioner is a taxable inhabitant of a town through which a contemplated road is to pass, does not constitute such an interest as will disqualify him to act as a county commissioner in the proceedings relative to laying out and making the road.
    The circumstance that a son and a brother of a county commissioner have joined with others in a petition that a road may be laid out, does not disqualify him to act on the question of common convenience and necessity of the road, it not appearing that the son or brother has any other than a public interest in the subject of the petition.
    Whether evidence aliunde can be received upon the return of a certiorari, to show errors or irregularities not apparent upon the record, quaere.
    Petition for a writ of certiorari to the county commissioners of Hampden.
    This petition sets forth, that at a meeting of the commissioners on the fourth Tuesday of April 1829, Reuben A. Chapman, William O. Norcross, Amos Norcross and others, presented their petition for a new road and an alteration of an old one, from Norcross’s hotel in Monson to Chaffee’s inn in Wilbraham ; that thereupon Caleb Rice of West Springfield, Reuben Boies junior of Blandford, and Joel Norcross of Monson, constituting the board of commissioners, proceeded on June 11, 1829, to view the alterations prayed for, and at a meeting on the fourth Tuesday of the same June, made their report that common convenience and necessity required a new road to be laid out from the meetinghouse, near the centre of Monson, to the house of R. Chaffee in Wilbraham, so as to widen and straighten the old road at certain places, and passing round the north side of Shrub hill, which report was accepted and the alterations mentioned therein adjudged to be of common convenience and necessity, and ordered to be laid out ; that on August 18, 1829, Rice, Norcross and Boies, the commissioners, proceeded to lay out the road, and assessed damages, and made a report thereof at a meeting held by them on the fourth Tuesday of September 1829 ; and the same was then accepted and ordered to be recorded.
    This petition further sets forth, that at the same meeting of the commissioners, held on the fourth Tuesday of April 1829, Amos Pease and others presented their petition for an alteration of part of another road, leading from Amos Norcross’s house in Monson, to Chaffee’s inn in Wilbraham ; that Rice, Norcross and Boies, the commissioners, ordered that they would meet at Chaffee’s on June 12, 1829, to view the route, and directed notice ; that afterwards, on the same 12th day of June, Rice and Boies, and Robert Emery, one of the special county commissioners, proceeded to view the route, and made their report that common convenience and necessity required that the road should be altered by being laid out southerly of the old road,—which report was signed by Rice and Boies, and by Emery, who stated that he did the same as special commissioner in the room of Joel Norcross, who did not act, at the request of certain remonstrants ; that at the regular meeting of the commissioners, held by Rice, Norcross and Boies on the fourth Tuesday of June 1829, it was ordered that the commissioners would meet at Chaffee’s on the 20th of August, to locate the same, and that on that day, Rice, Norcross and Boies laid out the road and assessed damages, and estimated the whole expense thereof, and made a report at a regular meeting held by Rice, Norcross and Boies on the fourth Tuesday of September 1829, and the same was then accepted and ordered to be recorded.
    This petition then alleges, that in the records and proceedings upon the petition of Chapman and others, manifest errors have intervened, to the damage of the inhabitants of Wilbra ham, and among other errors the following : —
    1. That the inhabitants of Monson were interested in all those proceedings ; that Joel Norcross was one of the inhabitants of that town, and interested in the subject matter of that petition, and the questions arising thereon, and was. by law unable to hear and determine any matter relating thereto, and the commissioners were unable to hear and determine or to act therein ; that there were two special commissioners qualified to act; that the inhabitants of Wilbraham, before the proceeding to lay out the road, objected to Norcrbss’s acting in any of the proceedings, and one of the special commissioners ought to have been summoned and to have acted in all the proceedings, yet neither was summoned nor acted &c., but Norcross attended and acted as one of the commissioners.
    
      Sept. 22d
    2. That the inhabitants of Wilbraham, at the time of the view and report and adjudications thereon, requested the commissioners to view a route and lay out a highway between the routes described in the petitions of Chapman and others, and of Pease and others, instead of the roads prayed for in those two petitions, which intermediate road would be less expen sive to the town of Wilbraham and more expensive to the town of Monson, than the other two roads ; that the commissioners then examined the intermediate route ; that it passed over a large tract of land owned .by Norcross, who opposed it, and the town of Monson and Norcross were directly interested in the questions arising upon the selection of either of the roads and the proceedings thereon ; yet Norcross, though objected to by the inhabitants of Wilbraham as interested and disqualified by law to act thereon, did act and adjudicate thereon as one of the commissioners.
    3. That the petition of Chapman and others was signed and presented, among others, by William O. Norcross of Monson, the son of Joel, and by Amos Norcross of Monson, the brother of Joel; and that Joel was not a disinterested and impartial person and not qualified to act and adjudicate upon the petition &c., yet that in all the proceedings thereon, he did act as one of the commissioners.
    This petition alleged as an error in the proceedings upon the petition of Pease and others, that the commissioners were requested to view the intermediate route, and that Norcross was disqualified to act by reason of his being interested, (as stated in the second error above set forth,) yet that he acted as one of the commissioners, in all the proceedings upon the petition of Pease and others, subsequent to the view made in pursuance of that petition.
    
      Lathrop and G. Bliss,
    
    in support of the petition, proposed to prove by the testimony of witnesses, that Joel Norcross was a taxable inhabitant of Monson ; that he owned land in that town, the- value of which would be affected by laying out the roads prayed for; that two of the persons who signed the petition of Chapman and others, were a son and brother of Joel Norcross, and that one of them owned a farm near one these roads ; that the estimated cost of making the parts of the roads lying in Monson was much more than the actual cost^ anc[ tj-,e estimated cost of making the parts lying in Wilbraham was much less than the actual cost; and that if the intermediate route had been taken, the expense to the inhabitants of Wilbraham would have been less than that to which they were subjected by the two roads actually laid out.
    
      W. Bliss and R. A. Chapman, for the respondents,
    objected to the admission of any evidence dehors the record. Ex parte Weston, 11 Mass. R. 417 ; Commonwealth v. Westborough, 3 Mass. R. 406 ; Commonwealth v. Roxbury, 8 Mass. R. 457 ; Spaulding v. Alford, 1 Pick. 33; Ex parte Vermilyea, 6 Cowen, 555 ; 1 Lilly’s Abr. 252 ; Rex v. Lediard, Sayer, 6; Tidd’s Pr. 1109; Commonwealth v. Cambridge, 7 Mass. R. 160.
    The evidence offered by the petitioners, together with evidence on the part of the respondents, was admitted by the Court de bene esse.
    
    
      Lathrop and G. Bliss
    
    then urged, that a town through which a road is to pass, is interested directly in the location and expense of making it; that in a suit to which the town is a party, such interest would be sufficient to disqualify an inhabitant of the town for being a juror, or for serving any process as an officer, or being a witness, (except for the St. 1792, c. 32,) or being an appraiser, in the case of a levy on land Boston v. Tileston, 11 Mass. R. 468. Under the statute of 1786, c. 67, § 4, respecting highways, he could not have been on a locating committee, not being a disinterested freeholder. Norcross had a direct personal interest in selecting the northern route in preference to the intermediate one ; and although there was no petition for the intermediate one, and therefore the commissioners could not lay it out, yet if they saw that it was the better route, this would have been a sufficient reason for refusing to lay out the road prayed for. The interest of this commissioner disqualified him to decide on the proportion of the expense to be paid by the' town of Mon-son and by the county. Nor was there any necessity in the case, for one of the special commissioners might have been summoned to act in his place. St. 1827, c. 77, § 9; Pearce v. Atwood, 13 Mass. R. 340 ; Anon. 1 Salk. 396 ; Bonham’s case, 8 Co. 118 ; Wood v. London, 1 Salk. 397 ; Hesketh v. Braddock, 3 Burr. 1847 ; Case of Foxham Tithing, 2 Salk. 607 ; Com. Dig. Justices, I 3 ; Rex v. Yarpole, 4 T. R. 71 ; Commonwealth v. Ryan, 5 Mass. R. 92 ; Hawkes v. Kennebeck, 7 Mass. R. 461 ; Lansing v. Albany Ins. Co., Hopkins, 102 ; Stanton v. Suliard, Cro. Eliz. 654. The county commissioners have many duties to perform which are of a judicial character, and in which their decision is final; but admitting them to be merely ministerial officers, still the objection of interest applies.
    
      Sept. 23d
    
    Norcross was incompetent to act on the petition presented by his son and brother. They would at least be liable to costs in case their petition was not granted. Munshower v. Patton, 10 Serg. & Rawle, 334.
    
      W. Bliss and R. A. Chapman, contra,
    
    cited Ex parte Miller, 4 Mass. R. 565, and Ex parte Weston, 11 Mass. R. 417, to the point that the Court will not grant a certiorari except where injustice has been done.
    On the question of the commissioner’s interest, Board of Justices v. Fennimore, 1 Coxes’s N. Jers. Rep. 190; Wood v. London, 1 Salk. 398 ; Gage v. Gannet, 10 Mass. R. 176; Mason v. Thatcher, 7 Mass. R. 398 ; Fuller v. Hampton, 5 Connect. R. 417.
    In regard to the objection of consanguinity, Jeffries v. Randall, 14 Mass. R. 206.
   Shaw C. J.

delivered the opinion of the Court. Several questions of considerable practical importance, are raised in the present case ; but by far the most important is, whether the circumstance that a county commissioner is a taxable inhabitant of a town through which a contemplated road is to pass, constitutes such an interest as to disqualify such commissioner from acting, upon the question of the common convenience and necessity of laying out the road.

This petition embraces two distinct proceedings of the commissioners, founded upon distinct petitions, considered and decided upon their own respective merits ; and part of the confusion and difficulty suggested in the petition for a certiorari and in the argument, has arisen from considering these two proceedings together. The principal question consideied, however, whether Joel Norcross, one of the commissioners, could act, applies equally to both proceedings, as they both related to the location of roads partly within the town of Mon-son, of which town he was a taxable inhabitant.

We most cheerfully accede to the position taken in behalf of the petitioners, that every person exercising any judicial function or any discretionary authority, ought to be impartial and disinterested. This principle is" well expressed in the declaration of rights. “ It is essential to the pres ervatión of the rights of every individual, his life, liberty; property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.” Declaration of Rights, art. 29.

The last clause intimates the necessary qualification of the general principle ; that there may be cases, in which there are small collateral and contingent interests, necessarily incident to the condition of human affairs, and to organized society, so general in their nature as not to be avoided, and therefore not to be considered as opposed to the general rule. The constitution intends to declare a great fundamental principle, leaving it to the judgment and conscience of the legislature so to apply it as to secure the great result, of substantial impartiality in all judges and functionaries exercising public authority, as far as practicable.

It has therefore been held, that it is competent for the legislature to provide by law, that a small contingent interest which a juror or judge has in common with his fellow citizens of the state, county or town, shall not disqualify him from acting as a judge or juror. Therefore where a penalty upon the conviction of the offender was given to a town, but where from the constitution of the court the offence must be prosecuted and tried before a court and jury composed of citizens of such town, the interest of such judge and jury could not be urged as an objection to the jurisdiction of the court. Commonwealth v. Ryan, 5 Mass. R. 90.

Were it otherwise, there are many cases in which there would be a failure of justice, both in the civil and criminal department. All cases in which the rights and interests of the commonwealth are drawn in question, as where penalties ipon conviction are given to the commonwealth, or where its civil rights are in controversy, must be tried by judges and jurors who are citizens, and of course who are interested. One consideration which may be urged in justification of such proceeding is, that the interest which every citizen has in maintaining an impartial administration of justice, and having right and justice done to others, may be supposed to counter act and balance the minute and very remote personal interest which he may have as a member of the commonwealth. But another and perhaps more decisive consideration is, that otherwise the wheels of justice must stop ; that such a proceeding is necessary to the attainment of right; and a tribunal so constituted as to be under the influence of no other than such minute interest, is as impartial and independent as the lot of humanity will admit.

Then the question recurs, in the particular case, whether the interest which the citizen of a town has, in the laying out of a highway, is such as to disqualify him from acting as a county commissioner.

This depends upon the nature and powers of the office oi county commissioners, and the statute under which it is constituted. If it was intended by the legislature, that such an interest should not disqualify, it appears from the case already cited and the true construction of the declaration of rights, that it was competent for them so to do. The office of county commissioner is a new one, created by a recent statute, an office not known to the common law, or the early history of the commonwealth, and therefore we must seek for its description and powers in the statute, (St. 1827, c. 77,) and in the powers of those officers who formerly exercised like functions.

Their powers, though involving to a great degree the exercise of judgment and discretion, are yet rather administrative than judicial. They have no direct jurisdiction to decide upon contested rights between party and party, though their decisions do collaterally and incidentally affect the rights of counties, towns and individuals, to a considerable extent, That they were not regarded as “judicial officers” by the legislature, is manifest, from the provision that they are appointed for a limited term of years ; whereas by the constitution, “judicial officers” are to hold their offices during good behaviour. They are expressly invested with power to order and direct, that part of the expense of laying out a new highway may be charged upon the county, and yet the statute expressly provides, that they shall be residents of the county. By necessary implication, the interest they must have, as contributors to the county expenses, was declared by the legislature, not to disqualify them. The interest they have as citizens of a town, is of precisely the same nature ; it may under some circumstances be different in degree.

The question then is, whether the latter interest is so distinguishable from the other, in degree or otherwise, as to constitute an exception by necessary implication. The interest is incidental, not direct; contingent, not certain. The laying out of a new highway, may be a benefit instead of a charge upon the town through which it is laid out, not merely in the accommodation obtained, but in the saving of expense. The petitions in this very case, set forth, that in consequence of the great expenses of repairing the present road, and the comparative cheapness of maintaining and repairing the new road, by its better and more favorable location, the new road would be a saving of expense to the town. This may or may not be true, but it serves to illustrate the position, that laying out a new highway may be a saving instead of a charge to the town, and therefore the pecuniary interest of the inhabitants in the question is remote and contingent.

But then it is urged, that the interest of a commissioner, as a member of the county, is necessary, and therefore was contemplated by the statute ; whereas that of a citizen of a town might be obviated by taking commissioners, standing or special, belonging to other towns. But this may not always be possible ; the contemplated county road may extend through several towns and affect every town in which the commissioners reside. As such a case may occur, and in some counties was like! / to occur, and as the statute makes no provision foi excepting such a case, it seems to be a necessary inference, that the circumstance of being an inhabitant of one of the towns through which the highway was to pass, was not regarded as a disqualification of the commissioner.

We are not aware, that when the jurisdiction of laying out highways was vested in the old court of sessions, consisting of all the commissioned justices of the peace for the county, any one was disqualified who was the resident of a town through which the highway was contemplated to pass.

Considering the nature of the duties to be performed by these officers, that, by the necessary construction of the statute, their interest as residents of the county was not considered a disqualification, that the remote and contingent interest which they might have as inhabitants of a town, is such as has been often overlooked and disregarded in like cases, both by statute provision and judicial decision, and that it is not of such a nature as to constitute, by necessary implication an exception to the general authority conferred on the commissioners by the statute, we think that the commissioner, in the present case, was not disqualified in consequence of his being a citizen of Monson.

The exception that one or both of the petitions was signed by the brother and son of one of the commissioners, we think, cannot be sustained. Nothing appears to show any other than a public interest in these petitioners ; they joined with others in setting forth that such a highway would be of common convenience and necessity. It does not appear that they had any private interest as landholders or otherwise, to be affected by the decision of the question. The objection therefore cannot prevail.

Whether evidence aliunde could be received upon the return of the certiorari, to show errors or irregularities not apparent upon the record, we give no opinion ; the evidence given de bene esse, upon the application to the discretion of the Court has not been such as to sustain the allegations in point of fact. Upon the substantial merits of these proceedings, there is no error requiring the interposition of the Court, and therefore the petition for a- certiorari must be dismissed 
      
       See Rutland v. County Commissioners of Worcester, 20 Pick. 71
     
      
       See Rev. Stat. c. 14, § 26; Danvers v. County Commissioners of Essex, 2 Metc. 185; Ipswich v. County Commissioners of Essex, 10 Pick. 519; Rutland v. County Commissioners of Worcester, 20 Pick. 71
     