COUNSEL: Robinson, Serjt., and Thesiger, on behalf of the board.

Gates, in support of the rule.

 

SOLICITORS: Attorneys for prosecution: J. & W. Pontifex.

Attorney for defendants: Smallpiece.

 

JUDGES: Cockburn, C.J., Blackburn and Mellor, JJ.

 

DATES: 1870 May 11, 12; June 29, 30.

 

 

Highway – Certificate that Highway be no longer repaired by Parish – 27 & 28 Vict. c. 101, s. 21; 5 & 6 Wm. 4, c. 50, s. 85 – Notices Condition precedent to Justices’ Jurisdiction – Certiorari, where a Discretionary Writ – Party aggrieved.

 

There were three roads, each in a different parish, running from three turnpike roads, and forming, by their junction together, a figure like a capital Y. The three limbs met at D., and the ends of the limbs met the turnpike roads at A, B, and C. On application by the highway board of the district two justices made a separate certificate as to each road (under 27 & 28 Vict. c. 101, s. 21, which incorporates 5 & 6 Wm. 4, c. 50, ss. 84 – 91), that the road from D to A, from D to B, and from D to C, was unnecessary. These certificates were affirmed on appeal by orders of quarter sessions, and it was ordered that the roads should cease to be repaired by the parishes.

 

E., an inhabitant of one of the parishes, and living in the neighbourhood of the roads, obtained a rule for a certiorari to bring up the orders and certificates for the purpose of quashing them on the ground that they were void by reason of the notices not having been affixed at the places required by law.

 

By 5 & 6 Wm. 4, c. 50, s. 85, after their view and before making their certificate, the justices are to direct the surveyor to affix a notice in form No. 19 at the place and by the side of each end, of the highway from whence the same is proposed to be diverted or stopped up, &c., and such notices having been published,and proof thereof given, the justices shall proceed to certify.

 

A notice had been posted at A, B, C, respectively, but no notice at all had been posted at D:–

 

Held, that the actual publication of the prescribed notices at each end of the road to be dealt with was a condition precedent to the jurisdiction of the two justices; and that, although the roads formed one system, yet each of the roads having been treated as a separate road, this condition had not been fulfilled, and the orders were therefore void as made without jurisdiction.

 

Held, also, that, though a certiorari is not a writ of course, yet as the applicant had by reason of his local situation a peculiar grievance of his own, and was not merely applying as one of the public, he was entitled to the writ ex debito justiti3Ú4.

 

RULE, calling on the Justices of Surrey, and the Blackheath Highway District Board, to shew cause why a writ of certiorari should not issue to remove into this court the orders made by the justices at a general quarter sessions holden on the 31st of December, 1869, upon four several appeals between Edward Eager and the said board touching the enrolment by the clerk of the peace of four several certificates of two justices, and also the said four certificates, upon the ground that the certificates are void, [*467] and that the several notices required by the statutes were not affixed at the placed required by law. At the instance of J. S. Elliott.

 

The rule was obtained on four several affidavits of J. S. Elliott, who described himself as of Pain’s Hill, Bramley, in the county of Surrey; and it appeared from the plans annexed that Pain’s Hill was in the immediate neighbourhood of the roads to which the certificates related. The certificates were made under 27 & 28 Vict. c. 101, s. 21(1); and each certified that a certain road mentioned therein was unnecessary, and each order directed that the road should cease to be a highway which the parish in which it was situate should be liable to repair.

 

The facts and the objection of the want of notices are sufficiently stated in the judgment of the Court.

 

May 11. Robinson, Serjt., and Thesiger, shewed cause on behalf of the board. These certificates and orders were made under 27 & 28 Vict. c. 101, s. 21, that certain roads or highways were

 

(1) 27 & 28 Vict. c. 101, s. 21:– “When any highway board consider any highway unnecessary for public use, they may direct the district surveyor to apply to two justices to view the same, and thereupon the like proceedings shall be had as where application is made under the Highway Act, 1835 [5 & 6 Wm. 4, c. 50, ss. 84-91], to procure the stopping up of any highway, save only that the order to be made thereupon, instead of directing the highway to be stopped up, shall direct that the same shall cease to be a highway which the parish is liable to repair, and the liability of the parish shall cease accordingly; and for the purpose of such proceedings under this enactment such variation shall be made in any notice, certificate, or other matter preliminary to the making of such order as the nature of the case may require.”

 

By 5 & 6 Wm. 4, c. 50, s. 84, the chairman of a vestry may direct the surveyor of highways to apply to two justices to view any highway the vestry may deem expedient to divert or stop up. S. 85: ... “If it shall appear upon such view of such two justices that any public highway is unnecessary, the said justices shall direct the surveyor to affix a notice in the form or to the effect of schedule No. 19 to this Act annexed, in legible characters, at the place and by the side of each end of the said highway from whence the same is proposed to be turned, diverted, or stopped up,” and also to insert a notice in the newspapers, &c. ... “And the said several notices having been so published, and proof thereof having been given to the satisfaction of the said justices, and a plan having been delivered to them,” &c., “the said justices shall proceed to certify under their hands the fact of their having viewed the said highway as aforesaid,” ... and that the same is unnecessary. [*468] unnecessary, and should cease to be repairable by the parishes; but the proceedings are governed by 5 & 6 Wm. 4, c. 50), s. 84 – 91. The three roads run from three different turnpike roads, and join one another at a place called Benbow Corner. And the objection is, that whereas s. 85 requires a notice to be affixed at each end of the road to be stopped up, &c., a notice was affixed at the end of each of the roads where it joins the turnpike road, but no notice was affixed at the other end, viz., Benbow Corner. In the first place, there has been an appeal, and this objection might have been then taken, and was not; the certificates and orders are good on the face, and the Court will not, on a motion for a certiorari, notice objections raised by affidavit, where they might have been brought before the sessions on appeal: Reg. v. Cambridgeshire. (1) Secondly, if the objection be good, the certificates and orders are made without jurisdiction, and are absolutely void, and the Court will not grant a certiorari, as it is unnecessary: Rex v. Sheffield Ry. Co. (2), and Reg. v. Bristol and Exeter Ry. Co. (3) And even if the orders were bad on the face, it is matter of discretion whether the Court will grant a certiorari or not: Reg. v. Manchester and Leeds Ry. Co. (4); at all events, when the objection does not go to the merits, and when the granting the certiorari may prejudice third persons: Reg. v. Newborough. (5) But the objection is really untenable; the three roads are practically one road, and might have been so treated, and comprised in one certificate under s. 86. And even treating them as three roads, all the notice that s. 85 requires was effectually given, for no one could pass by Benbow Corner, whichever way he went, without having passed two notices, one where he left one turnpike road, and one where he entered one of the other two turnpike roads. The present applicant, in fact, knew of all that was done; for he knew of, and was present at, the appeal, and it was only after the appeal was dismissed that he comes forward and starts this new objection.

 

May 12. Gates, in support of the rule. A writ of certiorari is not a matter of discretion, unless the applicant has been guilty of

 

(1) 4 Ad. & E. 111.

 

(2) 11 Ad. & E. 194.

 

(3) 11 Ad. & E. 202, n.

 

(4) 8 Ad. & E. 413.

 

(5) Law Rep. 4 Q.B. 585. [*469]

 

bad faith or misconduct; that was the ground of refusal in Reg. v. South Holland Drainage Committee. (1) It is clear from Rex v. Horner (2), that a certiorari is a writ of right. If the notices were not given according to the provisions of the statute, the Court, however reluctant, must grant the writ. So if it does not appear that the order was made upon view, a certiorari will be granted: Reg. v. Jones (3); or if at the time the order was made, the consent of the owner of the land over which the road is to be made has not in fact been obtained, the order is bad, and a certiorari must be granted for the purpose of quashing it. So, also, in Rex v. Kenyon (4), a technical objection was allowed to prevail, and a certiorari having issued, the order of sessions was quashed. In all these cases the certiorari was granted for formal defects, and the decision of the Court did not turn on the merits. The inference to be drawn from these authorities is, that the granting of a certiorari is a matter of right and not a matter of discretion.

 

[MELLOR, J. In Paley on Convictions, 5th ed. p. 412, it is stated that “though the certiorari is demandable of right by the prosecutor, it is discretionary in the Court either to grant or refuse it at the prayer of the defendant,” and authorities are cited for the proposition.]

 

The authorities cited are not conclusive; in Reg. v. Justices of Salop (5), and also in Reg. v. Pudding Norton (6), Crompton, J., says the certiorari is a discretionary writ, but the ground of refusing the writ was in one case that the applicant by his own conduct had precluded himself from obtaining it, and in the other that his proper remedy was by appeal to the quarter sessions. The affixing of the notices is a condition precedent to the jurisdiction of the justices; and as they had no jurisdiction to act, the applicant is entitled to the certiorari.

 

Cur. adv. vult.

        

 

June 29. The judgment of the Court (Cockburn, C.J. , Blackburn and Mellor, JJ. ) was delivered by

 

BLACKBURN, J. This was a rule originally moved to shew cause why a certiorari should not issue to remove into this court for the

 

(1) 8 Ad. & E. 429.

 

(2) 2 B. & Ad. 150.

 

(3) 12 Ad. & E. 684.

 

(4) 6 B. & C. 640.

 

(5) 29 L. J. (M.C.) 39, 41.

 

(6) 33 L. J. (M.C.) 136. [*470]

 

purpose of quashing them, the orders of sessions made upon four appeals touching the enrolment of four certificates made by two justices of Surrey, relating to four highways in the four parishes of Alfold, Dunsfold, Bramley, and Hascomb.

 

The rule was refused as to the Alfold highway, but by inadvertence it was drawn up as to all four. This was admitted on the argument, and, so far as relates to the road in that parish, the rule must be discharged. But as to the other three certificates, the Court took time to consider, on a point which it is not easy to make intelligible without reference to a map. The roads in these three parishes formed one system, running from three turnpike roads, and forming a figure like that of a capital letter Y. The spot where the three limbs of this road met was called Benbow Corner. The three ends where the limbs met the respective turnpike roads may be conveniently designated as A, B, and C.

 

The two justices made three separate certificates. The firs described the road to which it referred as a road running “from Benbow Corner” to A. The second described the road to which it referred as running “from Benbow Corner” to B. The third described the road to which it referred as running “from Benbow Corner” to C.

 

Each certificate, after reciting an application from the highway board requiring them to view the highway mentioned in it, which the board considered unnecessary for public use, and that they had viewed it and were of that opinion, and that they had directed the notices required by the statute to be given, and that they were satisfied that they had been given, certified that the highway named in the certificate was unnecessary for public use.

 

A separate appeal was lodged against the enrolment of each of these three certificates, but by agreement among the parties the three appeals were consolidated, and one jury tried the three; they found in favour of the highway board, and the quarter sessions consequently enrolled the three certificates, and ordered that the roads should cease to be highway which the parishes were liable to repair. [*471]

 

These certificates were made under s. 21 of the Highway Act, 1864 (27 & 28 Vict. c. 101), which directs that “the like proceeding shall be had as when an application is made under the Highway Act, 1835, to procure the stopping of any highway,” mutatis mutandis.

 

This refers us to 5 & 6 Wm. 4, c. 50, ss. 84 – 91. By s. 85 it is provided, that after holding their view, the two justices shall direct the surveyor “to affix a notice in the form and to the effect in the schedule (No. 19) to this Act annexed, in legible characters at the place and by the side of each end of the said highway, from whence the same is proposed to be turned, diverted, or stopped up,” and in newspapers and on the church doors, &c. “And such notices having been so published, and proof thereof having been given to their satisfaction, the justices shall proceed to certify.”

 

We think it clear that the actual publication of the prescribed notices is made a condition precedent to the jurisdiction of the two justices, the obvious object of the legislature being to secure that every one interested in the preservation of the highway should be aware of what was about to be done before it was done; and we also think it clear that the legislature have prescribed that the notices shall be placed at each end of the highway, so as to secure to every one who comes upon it the opportunity of reading the notice.

 

In the present case the highways which it was proposed to declare no longer repairable by the parishes formed one system, consisting of three limbs, joining the points A, B, and C, and meeting at a central point, Benbow Corner. The certificates described each limb of this system as a road from Benbow Corner to A, B, and C respectively. All the notices were correctly given, except those required to be placed at each end of the road. As to these, in fact, a notice was placed at each of the three ends where the road joined the turnpike, the points A, B, C; but it was admitted that no notice was put up at Benbow Corner.

 

It was argued that the justices might have treated the whole system of highway from the three turnpikes as one highway, and included it in one certificate; but whether they could have done so or not, they have not done so, and each of the three orders must be treated as good or bad, just as if it was the only one; and each [*472] relates to a separate highway, one end of which was at Benbow Corner, and at that end of such highway no notice was affixed.

 

It was then argued that what really was done gave notice to the public quite as effectually as what the statute prescribed, as no one could pass along by Benbow Corner without passing two notices, one at each turnpike road, and so getting every information which he would have got had the notice been affixed at Benbow Corner, and that the applicant, in fact, knew of all that was done, and that there had been an appeal by a party grieved to the sessions; and that it is only after the verdict of the jury was found against the appeal that he applies to this Court for a certiorari. And it was urged that the writ of certiorari was not of right, and that this Court, in its discretion, would not issue it to give effect to an objection certainly not affecting the merits.

 

On this we took time to consider, as the question to what extent the Court is bound to grant a certiorari, or may in its discretion withhold it, is one of great importance.

 

It is quite clear that, except when applied for on behalf of the Crown, the certiorari is not a writ of course. The Court must be satisfied on affidavits that there is sufficient ground for issuing it, and it must in every case be a question for the Court to decide, whether, in fact, sufficient grounds do exist. But in the present case we are satisfied that in fact no notice was affixed at Benbow Corner, and that, therefore, the orders complained of were made without jurisdiction, and the question arises whether this Court ought to refuse the certiorari.

 

In the very analogous case of prohibition a distinction is taken, thus expressed by Cockburn, C.J., in Forster v. Forster (1): “I entirely concur in the proposition that, although the Court will listen to a person who is a stranger, and who interferes to point out that some other court has exceeded its jurisdiction, whereby some wrong or grievance has been sustained, yet that is not ex debito justiti3Ú4, but a matter upon which the Court may properly exercise its discretion, as distinguished from the case of a party aggrieved, who is entitled to relief ex debito justiti3Ú4, if he suffers from the usurpation of jurisdiction by another court.”

 

The same distinction between an application by a party

 

(1) 4 B. & S. at p. 199; 32 L. J. (Q.B.) at p. 314. [*473]

 

aggrieved and by one who comes merely as a stranger to inform the Court, is taken as to certiorari in Arthur v. Commissioners of Sewers (1), where one of the judges said “that a certiorari was not a writ of right, for if it was it could never be denied to grant it; but it has often been denied by this Court, who, upon consideration of the circumstances of cases, may deny it or grant it at discretion; so that it is not always a writ of right. It is true where a man is chosen into an office or place, by virtue whereof he has a temporal right, and is deprived thereof by an inferior jurisdiction who proceed in a summary way, in such case he is entitled to a certiorari ex debito justiti3Ú4, because he has no other remedy, being bound by the judgment of the inferior judicature.”

 

Where the party grieved has by his conduct precluded himself from taking an objection, the Court will not permit him to make it as in Reg. v. South Holland Drainage Committee. (2)

 

In other cases where the application is by the party grieved, so as to answer the same purpose as a writ of error, we think that it ought to be treated, like a writ of error, as ex debito justiti3Ú4; but where the applicant is not a party grieved (who substantially brings error to redress his private wrong), but comes forward as one of the general public having no particular interest in the matter, the Court has a discretion, and if it thinks that no good would be done to the public by quashing the order, it is not bound to grant it at the instance of such a person. Thus in Reg. v. Newborough (3), where the application was made for a certiorari to bring up an order on the treasurer of the county of Carnarvon to pay 95l. 1s. 3d., being the amount of certain allowances to, and expenses incurred in respect of, special constables, but not till after the treasurer had paid the money and his accounts had been allowed at the sessions, so that the applicants, though ratepayers, could obtain no benefit from quashing the order, as the money could never be recovered back, Lush and Hayes, JJ., then sitting in the Bail Court, thought they were not bound to grant the certiorari, though the order was informal and probably void. And we think they were right; but, as is distinctly stated by my Brother Lush, the question would have been different, if the order had

 

(1) 8 Mod. 331.

 

(2) 8 Ad. & E. 429.

 

(3) Law Rep. 4 Q.B. 585. [*474]

 

not been acted upon, and the money paid, and the accounts allowed.

 

We find no case inconsistent with this distinction, which we think is a sound one, and therefore we think that, in exercising our discretion, we must see whether the present applicant is in the condition of a person grieved, applying for the certiorari to remove an order made without jurisdiction which affects his interests; and we think he is.

 

In Rex v. Taunton St. Mary’s (1), an indictment for not repairing a highway, had been removed by certiorari, and the question was whether the prosecutors were parties grieved, so as to entitle them to costs. Lord Ellenborough says, “Certainly a person does not answer to the character of a person grieved who is only in common with the rest of the subjects inconvenienced by the nuisance; but here it appears that those persons have, by reason of their local situation, a peculiar grievance of their own.”

 

This is exactly the position of the present applicant. And the continued existence of these orders at the quarter sessions would make it difficult to get a grand jury to find a bill of indictment against the parish, which, after all, would be an inconvenient mode of raising the objection to the validity of these orders.

 

The rule must therefore be made absolute so far as regards the three roads, but, as the rule must be discharged as to the other, without costs.

 

Rule absolute accordingly, without costs.

 

(1) 3 M. & S. 465, 472.