
    Elisha Parks, Petitioner, &c. versus The Mayor and Aldermen of the City of Boston.
    The power vested in the mayor and aldermen of Boston as to laying out or altering streets, “ whenever in their opinion the safety or convenience of the inhabitants shall require it,” Is judicial, and a certiorari lies to remove their proceedings in such a case.
    Where such mayor and aldermen shall adjudge that the laying out or altering ol a street is required by public safety and convenience, their having taken a bond from an individual to contribute towards the expense, will not vitiate their proceedings, provided the bond was not made the basis of their proceedings, and the adjudication was not colorably for the use of the city and really for the benefit of the individual.
    Petition for a certiorari, to set aside certain proceedings of the mayor and aldermen of the city of Boston in relation to the widening and laying out of a street over land of the petitioner and taking away a part of his store standing on the same. The facts in the case were as follows : —
    On the 26th of January, 1829, the mayor and aldermen passed a resolve, — “ that the public safety and convenience re quire, that Doane street be widened, from Kilby street to Broad street, to the width of thirty feet; provided, that the same can be effected and the buildings and obstructions removed at an expense to the city, which (in addition to the sum of 1500 dollars already appropriated to that object) shall not exceed the sum of 2000 dollars.” A committee appointed to ascertain whether that could be effected at the expense stated, made report to the board of aldermen on the 23d of February, 1829, that certain persons (naming them) “ have offered and agreed to execute a good and sufficient bond, with condition to indemnify the city from all damages, costs and expenses incident to the widening said Doane street, in the manner express ed in said resolution ; ” and thereupon it was on the same day resolved by the mayor and aldermen, “ that the said bondsmen be accepted and approved, and that the mayor be authorized and directed to cause the same bonds to be executed ; and upon the execution and delivery of the same, the said street shall be widened as expressed in said resolution.” A bond as here described was accordingly given. Afterward on the 5th of March a resolve was passed, “that the public safety and convenience require that Doane street be widened, and the same is hereby widened and laid out in manner following, viz. [here describing the courses and measurements of the street, and the quantity of land taken from the lots of the petioner and others,] and further, that notice be given to Elisha Parks, William Brown and others, proprietors of the buildings on the south side of said Doane street, that so much of their buildings as is necessary for the purpose of effecting the aforesaid resolves, and which stand within the line of said Doane street, thus laid out, will be taken down and removed on the 1st day of June next, unless the same be previously removed by the proprietors thereof.” The time here assigned for tak ing down the buildings in question, was afterwards enlarged. The petitioner was the proprietor of one of the buildings mentioned in this resolve ; and, not having removed his build-mg (which was a store), a part of it was cut off and removed by the city, according to the resolve.
    Rand, for the petitioner.
    A certiorari will lie in this case to the mayor and aldermen ; their proceedings have been irregular, and this is a proper remedy. This remedy is not confined to the cases of proceedings in judicial tribunals. Besides, the acts of the mayor and aldermen are matters of record, by the act incorporating the city, and by other acts ; and the city clerk is required to keep such record. St. 1816, c. 90; 1821, c. 110. This Court will interpose, when the inferior tribunals mistake their powers or exercise them improperly ; as, in cases under the militia and mill laws. Commonwealth v. Sessions of Middlesex, 9 Mass. R. 388. In England, this process lies to various bodies ; as, the college of physicians, commissioners of sewers, the bishop, mayor of the staple, sheriff, coroner, &c. Com. Dig. Certiorari, A 1; Dr. Groenwelt’s case, 1 Ld. Raym. 454, and 1 Salk. 144; Anonymous, 1 Salk. 146; Rex v. Mayor &c. of Liverpool, 4 Burr. 2244. The case of Ball v. Partridge, 1 Siderf. 296, only goes to show, that when such bodies act within the sphere of their authority, the courts in England will not interfere. But our courts have gone further ; as in the cases cited ; and the opinion expressed in Harlow v. Pike, 3 Greenl. 438, does not apply; for the mayor and aldermen are not invested with the powers of selectmen only, but also of the court of sessions ; and, in the present instance, their act was a judicial one.
    
      March 31st
    As to the general question, the St. 1786, c. 67, the first section of which is relied on by the other side, is in accordance with the former laws respecting ways ; town ways, as well as others, must be such as are necessary ; the preamble of the provincial statute, 12 Anne, c. 6 (A. D. 1713), contemplates private ways which are “of absolute necessity.”
    All the proceedings in the case are to be taken together; and then it will appear throughout, that the mayor and alder men did not think the public necessity was such as would justify them in laying out the way at the public expense ; so far from this, the city is indemnified against any expense at all. The indemnity offered by interested individuals had an influence upon the decision of the city officers ; this is to be in* ferred from what appears on the face of their resolve of Feb* ruary 23, 1829, and in the reports of committees, upon which those resolves were founded; and all these acts of the city authorities are proper to be taken into consideration under this application. The resolve passed by the mayor and aldermen on the 26 th of January, 1829, which proposes to widen the ■street conditionally, that is, if the expense shall not exceed a certain sum, is to be taken in connexion with that of March 5, 1829. The remedy now asked for is the more necessary, as the St. 1799, c. 31, and St. 1804, c. 73, regulating the subject of streets in Boston, differ from the general highway laws, in not providing for any appeal from the decision of the city authorities ; unless a discontinuance may be made of such ways by the Court of Common Pleas. If this cannot be done, then there is no remedy but by certiorari or an action of trespass.
    The questions then are, — 1. What are the powers of the mayor and aldermen under the act of 1799 ; and, 2. whether they have exceeded those powers.
    The intent of the act was to authorize the taking of private property, if the public exigencies required it; but, not to take the property of one individual and apply it to the benefit of another. The constitutions of the United States and of Massachusetts both support this doctrine. We have gone greater lengths in this country than any civilized nation has, in taking private property for public uses. The general principles of the law of nations sanction it only when there is a “ pressing necessity,” “urgente necessitate.” Heinec. Elem. Jur. Nat et Gent. lib. 2. § 168, 169, 170; Vattel, bk. l, c. 20, § 244; Bynkershoek, Qucest. Jur. Pub. bk. 2, c. 15; Burlamaqui, Pol. Law, ft. 3, c. 5, § 4, 24, 27; Puffendorf, bk. 8, c. 5, § 7; Grot. bk. 2, c. 14, § 7, and bk. 1, c. 1, § 6, and Barbeyr. notes ; see also various cases in notes to Heinec. ubi supra, as Livy, b. 40, 1 Kings, ch. xxi. 2, and Sueton. Vit. Aug. c. 56. These examples all show the respect paid to private rights in ancient times and in other countries. The same principle of justice is laid down in 1 Black. Com. 139 ; though more lately an act of parliament has been passed, 13 
      Geo. 3, c. 78, resembling ours. See also 2 Johns. Ch. R. 166
    The mayor and aldermen have exceeded their authority, because they have laid out this street on the ground of the indemnity offered, and not exclusively at the expense of the city ; and the case does not differ from Commonwealth v. Sawin, 2 Pick. 547, and Commonwealth v. Cambridge, 7 Mass. R. 158; in which the bond of indemnity was likewise no part of the record.
    It is an objection also to the proceedings, that although the petition does not pray for a widening of the street in its whole length, yet the city undertakes to widen the whole. By the last resolve, too, it does not appear, that notice was given to the parties before the adjudication was made to widen or lay out the street. Harlow v. Pike, 3 Greenl. 438; Commonwealth v. Chase, 2 Mass. R. 170; Commonwealth v. Coombs, 2 Mass. R. 624; Commonwealth v. Peters, ibid. 229; Commonwealth v. Cummings, ibid. 171. [Parker C. J. But if notice was actually given, as is here the case, we should not grant a certiorari on that ground.] The Court would in their discretion allow it. After our hearing before the mayor and aldermen, further proceedings were had and the bond of indemnity was given, without notice to us. A dis tinction has been attempted to be made between the case of a county way and a town way, but the opinion of the Court, in Commonwealth v. Sawin, intimates no such distinc tian ; and the principle of “ necessity” is recognised in both. Anc. Charters, 404, 269; St. 1786, c. 67 ; 2 Johns. Ch. R. 166; Cod. Justin, lib. 8, tit. 12, § 9, and Brunneman, Comm, in h. tit.
    
    It is said, that our construction of the city powers would put a stop to all public improvements of this nature ; but if they are such improvements as are necessary for the public, they will not be prevented. In the present case, the resolve itself shows that the public necessities did not require the widening of the street, unless it could be done for 3500 dollars. Nor is it, as intimated, a mixed case of public and private necessity ; that part of the statute respecting private ways is inapplicable. The common benefit or convenience ought to be such as to justify the whole expense. The power vested in the mayor and aldermen is very great, and their acts ought to be subject to revision by certiorari. In the case of selectmen of towns, there -is a second hearing, that is, by the town itself; and an appeal to the Court of Sessions.
    
      Pickering and Curtis, for the respondents.
    The Court will not grant a certiorari for a mere informality in any case ; but in the present case it does not lie at all. The mayor and aldermen have succeeded to the selectmen, and have the whole power of those town officers ; they do not lay out a street, as surveyors of highways, but as mayor and aldermen ; and the only remedy is by action. Of about forty cases of certioiari in our own Reports, there is none of a certiorari to selectmen. The authority to issue writs of certiorari is by the. statute of 1782, c. 9, which is confined to cases of criminal jurisdiction ; though the definition in Fitzh. Nat. Brev. 245, A, and the practice in England, may be broad enough to include any court of record. Com. Dig. Certiorari, A 1; The King v. Reeve, 1 W. Bl. 233. But where the inferior tribunals have a discretion (as commissioners of highways, who may lay out or refuse a road) the Court will not interfere by this process. Lawton v. Commissioners of Cambridge, 2 Caines’s R. 181, by Spencer J.; The King v. King, 2 T. R. 234. But the board of mayor and aldermen is not a judicial court to which this process will lie. In Ball v. Partridge, 1 Siderf. 296, it was held that this writ does not lie to a new jurisdiction erected by statute, which has a final authority, if it proceeds according to the statute. The mayor and aldermen performed only a ministerial act; as in Baxter v. Taber, 4 Mass. R. 361, 367; and the remedy is by an action. Harlow v. Pike, 3 Greenl. 438. In Craigie v. Mellen, 6 Mass. R. 7, a certiorari would have been resorted to, instead of an action, if the able counsel there had supposed it could be sustained. Although the mayor and aldermen have the general powers possessed by the Court of Sessions at the time of the city chalter; yet the judicial powers of that court had been transferred to the Court of Common Pleas. Their remaining powers are merely ministerial. By St. 1821, c. 110 (city charter), all the powers of the Court of Sessions are divided between the Court of Common Pleas and the mayor and aldermen ; the judicial business being transferred to that court.
    The St. 1786, c. 67, provides for laying out three kinds of ways,—highways, town-ways, and private ways. Of the last, we do not find any adjudged case in our own Reports ; but in Melcalf v. Bingham, 3 N. Hampsh. R. 459, it is decided that a private way laid out for individuals is a town-way. In laying out such a way, too, it is not necessary to have any petition as a rule for their proceedings, but the selectmen may lay it out at their discretion. The party whose land is taken will be entitled to an indemnity ; according to the principle in the case cited for the plaintiff from 2 Johns. Ch. R. ; and by our statute, if the way is for the benefit of individuals, the compensation is to be paid by them. This is the plain and broad distinction in the proceedings respecting highways and town-ways or private ways. In respect to Boston, the statute of 1799, c. 31, has been in operation for thirty years, and no constitutional objection has been made to it; the principles of it have been recognised by subsequent acts. St. 1804, c. 73, ánd 1809, c. 28. And these acts do not, like the general laws of the State, speak of the necessity of a way, but provide that whenever the safety and convenience or (according to. the second of these acts), the safety or convenience of the inhabitants shall require a way to be laid out or widened, it may be done. [Parker C. J. These expressions in the two statutes probably mean the same thing.] These acts do not authorize the revision of the doings of the city officers by any other tribunal ; except for the damages alone, which, as usual, are to be ascertained by a jury. The statute of 1816, c. 90, which authorizes the discontinuance of ways in Boston, is again a recognition of the same principles. The passing of these acts for the city of Boston is a repeal of the general acts ; a jury cannot, as in other cases, discontinue a way in Boston, though they may assess damages for a discontinuance or laying out. And, as to the public necessity contended for, in Commonwealth v. Sawin, 2 Pick. 550, the chief justice says, the statute provides a mode for the laying out of a road which the public convenience does not demand, but which may be useful to individuals. There may also be cases of a mixed character, partly of public and partly of private utility. Legal provisions of this kind are more particularly required by the local necessities of Boston ; and have been so ' considered from the time of the provincial statute of 4 W. fy M. respecting fires in Boston ; without them it would be impossible to make gradual improvements in the streets. It is beneficial to the public that arrangements should be made by indemnities, as in this case. In Commonwealth v. Sawin, the Court do not say that a bond in aid of the town charges would be invalid. It is a common practice in Boston, and other places, for individuals to give their land in order to widen streets ; and there can be no difference between giving land and giving money ; the argument of the petitioner, that a dona'ion in money, or by bond, would have an improper influence, will apply equally to a donation of land. In Commonwealth v. Cambridge, 7 Mass. R. 157, Parsons C. J. confines his remarks to bonds colorably given for the public benefit, but in reality for private use. In the present case the widening was suggested by the great fire which happened in the street, and was deemed necessary for the public safety.
    
      June 27th.
    
    But further ; the granting of a certiorari is at the discretion of the Court; it must appear that injustice has probably been done ; and before granting it, they will look into the proceedings which are objected to. Com. Dig. Certiorari, D; Drown v. Stimpson, 2 Mass. R. 445; Ex parte Weston et al., 11 Mass. R. 417; Lees v. Childs, 17 Mass. R. 351.
    Now the bond is no part of the record ; and the Court cannot go out of that. The final resolve of the mayor and aider-men, by which the petitioner’s land was taken, makes no allusion to the bond ; and for aught that appears there, alb the previous agreements, bonds, &c. may have been relinquished, and the mayor and aldermen may have laid out the way without the least reference to them. There had been various plans and proposals from 1825 to the time of the second resolve (Januaiy 29, 1826,) which makes an appropriation only, and says nothing of any bonds ; the third mentions bonds, and the last is silent on that point. It cannot therefore be inferred that the bond was the basis of the final adjudication, even if it had been a bond colorably given as in the cases cited.
   Wilde J.

delivered the opinion of the Court This is a motion for a writ of certiorari to the mayor and aldermen of the city of Boston, to remove their proceedings in laying out and widening a certain street called Doane street, which proceedings the complainant alleges are erroneous and irregular. To this motion two objections are made on the part of the respondents, —

1. That a writ of certiorari will not lie to the mayor and aldermen, they not being constituted, as it is said, a judicial tribunal.

2. That the proceedings are valid, and in no respect erroneous.

In regard to the first objection, the question is, whether the power vested in the mayor and aldermen as to the laying out and alteration of streets or ways, is judicial or ministerial.

By the statute of 1804, c. 73, the selectmen of the town ot Boston were empowered to lay out or widen any street, ' ‘ whenever in their opinion the safety or convenience of the inhabitants of said town shall require it.” And by the 13th section of the city charter this power is vested in the mayor and aldermen. We cannot doubt that the power thus conferred is judicial, for before the mayor and aldermen can proceed to lay out a new street, or to widen an old one, they are required to adjudicate on the question, whether the safety or convenience of the citizens requires such a laying out or alteration. It is a power similar to that vested in county commissioners in relation to highways, and no reason can be given why a writ ot certiorari should lie to those commissioners, and not to the mayor and aldermen of the city of Boston.

Whether certiorari will lie to quash the proceedings of the selectmen of other towns in the laying out of town-ways, is a question not raised in this case ; for the power vested in the mayor and aldermen is essentially different from that vested in the selectmen of towns. They have only the power to lay out town-ways, but not to establish them. This can only be done by the authority of the town.

It has been contended, that certiorari will not lie to a court newly instituted and empowered to proceed by methods unknown to the common law ; and a case from Siderfin was cited ,n suPPort °f this position. This is true as to writs of error, but not as to writs of certiorari. The law seems to be well settled, that certiorari may be awarded to remove the proceedings from any inferior court, whether it be of ancient or newly created jurisdiction ; or whether it proceeds according to the course of the common law or not. Bac. Abr. Certiorari, P>; also Error, J?3, and the cases there cited.

This doctrine was laid down in the case of Groenvelt v Burwell, 1 Salk. 144, in which it was held that certiorari would lie to the censors of the college of physicians. It is more fully reported in 1 Ld. Raym. 469, and appears to have been a case well considered. So it was decided in a case cited in Groenwelt v. Bunuell, that a certiorari would lie to commissioners of sewers. The same principle was maintained in the case of the Caerdiffe Bridge, 1 Ld. Raym. 580, .where the court say they will examine the proceedings of all jurisdictions created by act of parliament, to the end that the court may see whether they keep themselves within their jurisdiction. And in the case of Lawton et al. v. Commissioners of Highways fyc. 2 Gaines’s R. 182, Spencer J. says, that “the authorities to the point decided in the case of the Caerdiffe bridge wrere so numerous and uniform, that it could not be necessary to enlarge.” And he adds, that “ the necessity of a superintending power to restrain and correct partialities and irregularities which may be committed by inferior officers, is so obvious and indispensable, that the court ought by no means to deny themselves a power of such salutary influence.” So in the case of Wood v. Peake, 8 Johns. R. 54, it was held that the appointment of a constable by three justices, they having jurisdiction of the subject-matter, is a judicial act, and remains val id until it is set aside or quashed in the regular course by certiorari. And the same principle is recognised in the case of Wildy v. Washburn, 16 Johns. R. 49. Cases might be multiplied, but it would be useless.

The uniform distinction is between judicial and ministerial acts; the former being only voidable for error, and the latter being merely void if not done in pursuance of lawful authority. And as judicial acts are valid until reversed for error, a writ of error or a certiorari will lie in all such cases. It the proceedings are in a court of record, according to the course of the common law, a writ of error is the proper remedy to reverse or vacate an erroneous judgment, otherwise the remedy is by certiorari.

2. The remaining question is, whether these proceedings are erroneous.

The error assigned is, that the petitioner’s land was taken for the accommodation of private individuals, and not for public uses, in violation of the 10th article of the declaration ot rights.

But this we think has not been made to appear. The record shows that the mayor and aldermen have adjudicated on the subject, and that they expressly resolved that the public safety and convenience required that the street in question should be widened. The sum of 3500 dollars was appropri ated to that purpose, and it does not appear with certainty thai that sum was not sufficient to defray the damages and expen ses resulting from the measure. But if this did appear, it would not prove that the land taken was not appropriated to public use. If the public necessity and convenience required the alteration, it is immaterial at whose expense it was made. A donation or contribution from individuals to relieve the burden upon the city, has no tendency to prove that the enlargement of the street was not a public benefit. A street or highway is not the less public, because it accommodates some individuals more than others, for this is the case in regard to all streets and ways, and is as applicable to Washington street as to the most insignificant lane in the city. All town ways, although in the St. 1786, c. 67, they are denominated particular and private ways, are in truth public highways, for the public without discrimination has the right to use them. And this is true as to all open ways, and it is emphatically true in respect to the streets of the metropolis and other large towns. Nor ,s ^ mater’al at whose expense such streets are laid out or altered. If the legislature should provide for its being done at the expense of the abutters, this clearly would be valid, and no infringement of the 10th article. Such we understand the law to be in New York, and its validity we believe has never been questioned, although it is well known that the principle asserted in our 10th article of the declaration of rights has ever been held sacred by the courts of that State, as a principle of natural justice and universal obligation.

As to the case of Commonwealth v. Sawin, 2 Pick. 547, it is distinguished from this in a most important point. In that case it appeared, that common convenience and necessity did not require the road prayed for to be laid out wholly at the expense of the town ; and it was so adjudged by the Court of Sessions. And it is expressly said in that case, that the Court did not decide that a bond given by an individual interested in a road, to relieve the town, was illegal; but only that such a bargain should not be the basis of an adjudication in favor of a road. And the same distinction is noticed by Parsons C. J. in the case of Commonwealth v. Cambridge, 7 Mass. R. 167. His remarks are applied to streets or ways laid out “ colorably for the use of a town, but really for the benefit of an in dividual.”

In the present case it has been adjudicated in unqualified terms, that the public safety and convenience required that the street in question should be widened. The bond given by Adams and others is not made the basis of the adjudication, and it is impossible for us to determine that it would not have been made, if no such bond had been given. This is matter of conjecture, upon which no certain judgment can be founded. Every presumption is to be made in favor of the regularity of the proceedings, and they are not to be vacated, unless it can be made to appear with certainty that they are irregular or erroneous, and this certainly does not appear. The proceedings of the mayor and aldermen previous to the final adjudication, may well be considered, without giving them s strained construction, as proposals thrown out with a view to piocure aid towards defraying the expenses of the proposed measure, and thus to relieve the city from a part of the public burden ; and in this there was nothing illegal or irregular.

We are therefore of opinion, that there is no error in the proceedings, and that the petition for a certiorari must be dismissed. 
      
       The power of selectmen to lay out highways is not judicial. Robbins v Bridgewater 6 N. Hampsh. R. 524.
     
      
       See Bath Bridge &c. Co. v. Magoun, 8 Greenleaf, 293; Rulhman v. Commomoealth, 5 Binney, 27; Phillips v. Phillips, 3 Halsted, 123; Triggs v. Boyce, 4 Hayw. 100; Bob v. State, 2 Yerger, 173; Commonwealth v. Hall, vast, 440; Commonwealth v. West Boston Bridge, 13 Pick. 195; White's Case, 2 Overton, 109; Adams v. Newfane, 8 Vermont R. 271; Robbins v. Bridgu water, 6 N Hampsh. R. 524.
     
      
       See Dudley v. Cilley, 5 N. Hampsh. R. 558; The Third Turnpike V Champney, 2 N. Hampsh. R. 199.
     
      
       Where a sum of money was subscribed by certain individuals for the purpose of defraying a portion of the cost of a town-way, and this fact was communicated to the inhabitants of the town, before the town-way was approved, it was held, that the vote of approval was not rendered invalid thereby. Copeland v. Packard, 16 Pick. 217. See Jones v. Andover, 9 Pick. 146, Freetown v. Bristol County Commissioners, 9 Pick. 46.
     