25 Cal.App.3d 978 (1972)
102 Cal. Rptr. 207
CLAUDE L. CAPPA, a Minor, etc., et al., Plaintiffs and Respondents,
v.
OSCAR C. HOLMES, INC., et al., Defendants and Appellants.
Docket No. 29471.
Court of Appeals of California, First District, Division One.
May 30, 1972.
*980 COUNSEL
Hauerken, St. Clair, Zappettini & Hines, Douglas & McEnhill, Douglas & Snyder, and Cyril Viadro for Defendants and Appellants.
Bocci & Modena and Daniel J. Modena for Plaintiffs and Respondents.
OPINION
ELKINGTON, J.
Oscar C. Holmes, Inc., and City of San Mateo, defendants below, appeal from a judgment in favor of plaintiffs Claude L. Cappa and Angelina Bonnici.
The facts, viewed in a light most favorable to the plaintiffs (see Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. 66 Cal.2d 782, 784-785 [59 Cal. Rptr. 141, 427 P.2d 805]) follow.
Oscar C. Holmes, Inc., a contractor, was constructing a multi-level parking lot covering about three blocks for the City of San Mateo. A portion of the structure was completed and open for public use; other portions were still under construction. On a Sunday afternoon plaintiff Cappa, then 16 years old, was going to a movie with another boy. They parked their car on the parking lot's second level where it was open to the public. The boys decided to take a short cut to the movie. On the same second floor level was a fence or barricade which had some openings and on or near which was a sign reading: "Danger  Construction Parking Only." They walked through the opening into an incompleted area about the size of a football field; it looked like "a large slab of concrete, just nice and level and smooth." There were no fences or railings on the edge of the area. While walking 3 or 4 feet from the edge plaintiff Cappa tripped over something, his feet went out from under him, and he went over the edge. He fell 30 or 40 feet sustaining injuries.
The judgment, entered on a jury verdict, awarded Cappa $20,000 and his mother Angelina Bonnici $1,805 for his medical expenses paid by her.
I. Defendants' principal claims of error concern the trial court's jury instruction on section 1632 of the Construction Safety Orders. (Cal. Admin. Code, tit. 8.) This safety order was prescribed by the Division of Industrial Safety of the Department of Industrial Relations, under the authority of Labor Code section 6500. The disputed instruction was in the following *981 language: "If surfacing provides a passageway that extends to any side of a floor where a man or material might fall, it shall be fenced on all sides by a railing and toe board. [¶] All railings, or barriers guarding floor or roof, shall be left in place until further construction provides permanent protection or an effective hazard control. Work shall be arranged so that openings are left unprotected for the least time possible during the transition from temporary to permanent safeguards."[1]
(1a) It is first contended that the safety order was intended only for the protection of workmen on the job, not for uninvited persons such as Cappa.
The basic rule with which we are concerned is easily determined. As said in Crain v. Sestak, 262 Cal. App.2d 478, 486 [68 Cal. Rptr. 849]: (2) "The violation of a safety order or statute is actionable negligence only as to those persons for whose benefit or protection it was enacted...." (See also Vesely v. Sager, 5 Cal.3d 153, 164 [95 Cal. Rptr. 623, 486 P.2d 151]; Nunneley v. Edgar Hotel, 36 Cal.2d 493, 497 [225 P.2d 497]; Routh v. Quinn, 20 Cal.2d 488, 491-492 [127 P.2d 1, 149 A.L.R. 215].)
(1b) Obviously the subject safety order was primarily intended for the benefit and protection of workmen. It has been said that industrial safety orders "might be regarded as peculiarly designed to protect employees when applied to places of employment which the public is prohibited from entering." (Porter v. Montgomery Ward & Co., 48 Cal.2d 846, 849 [313 P.2d 854]; Gaw v. McKanna, 228 Cal. App.2d 348, 353 *982 [39 Cal. Rptr. 428].) But it has consistently been held, at least where the safety order does not indicate the contrary, that persons consensually on the premises to which a safety order applies also come within its protection. Thus it has been held that coming within such protection are business invitees (Porter v. Montgomery Ward & Co., supra; McKeon v. Lissner, 193 Cal. 297 [223 P. 965]; Ross v. Kirby, 251 Cal. App.2d 267 [59 Cal. Rptr. 601]; Wiese v. Rainville, 173 Cal. App.2d 496 [343 P.2d 643]); tenants (Halliday v. Greene, 244 Cal. App.2d 482 [53 Cal. Rptr. 267]; Schumann v. C.R. Reichel Engineering Co., 187 Cal. App.2d 309 [9 Cal. Rptr. 486]; Longway v. McCall, 181 Cal. App.2d 723 [5 Cal. Rptr. 818]); insurance inspectors (Gaw v. McKanna, supra, 228 Cal. App.2d 348); son of employee (Tesche v. Best Concrete Products, Inc., 160 Cal. App.2d 256 [325 P.2d 150]); delivery men (Nungaray v. Pleasant Valley etc. Assn., 142 Cal. App.2d 653 [300 P.2d 285]; Pierson v. Holly Sugar Corp., 107 Cal. App.2d 298 [237 P.2d 28]); and school children (Lehmann v. L.A. City Board of Education, 154 Cal. App.2d 256 [316 P.2d 55]).
We observe that safety order number 1632 neither expressly, nor by implication, limits its protection to workmen. Obviously great hazard to human beings attends unprotected sides and openings of floors of buildings under course of construction. This is recognized by the safety order itself. It seems most unlikely that its purpose was, or should be, solely the protection of workmen, without concern for others who might be injured by the proscribed unsafe conditions. We therefore conclude that the safety order was also designed to protect members of the public consensually on the subject premises.
More difficulty lies in the determination whether the safety order was also intended for the benefit of trespassers or uninvited persons who enter upon premises under the course of construction.
Touching upon this question is Crain v. Sestak, supra, 262 Cal. App.2d 478. There a 13-year-old boy was injured by a fall from a loose plank of a scaffold on a house under course of construction. At issue on appeal was the question whether the trial court had properly instructed the jury on "assumption of risk." This issue in turn was related to an admittedly violated safety order which provided in part (p. 484, fn. 4): "Scaffolds shall be provided for all work that cannot be done safely by workmen standing on permanent or solid construction, except where such work can be safely done from ladders." (Italics added.) That plain language caused the court to conclude that the safety order was intended for the benefit of workmen alone. It was said (pp. 486-487): "Here, the order, by its terms, was peculiarly designed to protect employees and not members of the general public.... [The boy] was a trespasser on a part of the property *983 not open to the public or used by anyone except employees. The safety order applied only to workmen. As [the boy] was not a member of the class to be protected and defendant owed him no statutory duty, the violation of the safety order would not, in itself, preclude the defense of assumption of risk...."
Crain v. Sestak, supra, is clearly distinguishable from the case at bench where we have concluded the safety order was not designed to protect only workmen. The only other authority found dealing with the relationship of a safety order to trespassers is Pierson v. Holly Sugar Corp., supra, 107 Cal. App.2d 298. There, although the plaintiff was found to be other than a trespasser, counsel and the court seemed to assume (without discussion of the point) that if he were, the safety order would have been inapplicable.
We think the controlling authority on the question immediately before us is Rowland v. Christian, 69 Cal.2d 108 [70 Cal. Rptr. 97, 443 P.2d 561], decided August 1968, after Crain v. Sestak, supra, and Pierson v. Holly Sugar Corp., supra. Rowland v. Christian abolished the law's archaic distinctions between the duty of care owed the trespasser, the licensee, and the invitee on real property. It applied broadly the rule that "`All persons are required to use ordinary care to prevent others being injured as the result of their conduct.'" (P. 112.) And it was stated (p. 118): "A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty."
Rowland v. Christian impels us to hold that in the determination whether industrial safety orders apply to persons other than workmen, no distinction may be made between trespassers, licensees, and invitees.
No merit is found in defendant's incidental contention that the safety order refers to floor "openings" only and not to unprotected "sides" or "ends" of the floor. The safety order expressly provided that any unprotected "side of a floor" should be safeguarded (see fn. 1, ante). And "opening" means "a place or part which is open" (Webster's New Internat. Dict. (2d ed.)); it reasonably refers to the open space beyond the edge of an unprotected *984 floor. And it would seem unreasonable to infer an intent to protect against unprotected "holes" in a floor, but not against equally dangerous unprotected floor edges.
From the foregoing it would appear that the trial court's instructions on Industrial Safety Order Number 1632 were without error; we so hold.
II. (3) Defendants' next assignment of error is the trial court's failure to instruct on the principle of "assumption of risk."
It is clearly the law that "The defense of assumption of risk ... is inapplicable when the action is based on a violation of a safety law intended to protect a class of which [a party] is a member...." (Eberhard v. Bruhn, 13 Cal. App.3d 836, 839 [91 Cal. Rptr. 915]; and see Finnegan v. Royal Realty Co., 35 Cal.2d 409, 430-431 [218 P.2d 17]; Mezerkor v. Texaco, Inc., 226 Cal. App.2d 76, 98 [72 Cal. Rptr. 1, 639].) There was accordingly no error in the failure to so instruct.
It seems proper to point out that the jury were properly instructed on the rule of contributory negligence, a defense available even though liability would otherwise rest on violation of a safety order. (See Mula v. Meyer, 132 Cal. App.2d 279, 283-284 [282 P.2d 107].) But on this issue the jury found against defendants.
III. (4) Defendants also contend error in the trial court's refusal to reopen the trial for further evidence.
During the trial, while a building inspector was testifying, the following questions were asked and answers given.
"Q. Mr. Brown [the witness], Mr. Modena [plaintiff's attorney] was asking you about railings and barricades and scaffolding and this sort of thing, protection for the workers. Are there any rules and regulations that relate to what safeguards should be taken on particular construction jobs for the protection of workmen?
"THE WITNESS: A. Yes.
"Q. All right, and those are the Industrial Safety Orders, is that correct? A. That is correct."
Later, an industrial safety engineer of the State of California testified as follows:
*985 "Q. For 20 years, will you explain briefly to the jury what your duties are with the State of California?
"A. We endeavor to make places of employment safe by enforcing the provisions of the Labor Code, and the Industrial Safety Orders.
"Q. [A]re all contractors in the State of California  do they come under the Industrial Safety Orders?
"A. Yes, they do."
On the afternoon of the day following the foregoing testimony all parties declared they had no further testimony or witnesses in the cause. The court declared the matter submitted and continued the cause to the following Monday for jury argument. On that day defendants asked leave to reopen the trial for further evidence. The purpose was to prove that they had in fact complied with the safety order by arranging "so that openings are left unprotected for the least time possible during the transition from temporary to permanent safeguards." (See par. (c) of safety order, fn. 1, ante.)
As indicated, the trial court denied the motion to reopen.
It will be seen that the question of compliance with safety orders relating to "railings and barricades" became an issue during the trial. During the taking of testimony, defendants had a full opportunity to establish compliance with such safety orders. Indeed, the witness whose testimony was offered on defendants' motion to reopen was in the courtroom, and testified, following the testimony which we have quoted. And no showing was made why the desired testimony was not sooner adduced, or that defendants had in any way been misled by plaintiffs.[2]
In Gelberg v. Consolo, 51 Cal. App.2d 516, 517-518 [125 P.2d 74], it is said: "The rule is established by a long line of authorities that trial courts are vested with a broad discretion in permitting parties to reopen a case for the purpose of introducing further proof, and the trial court's ruling upon a request to reopen a case will be disturbed on appeal only where there has been a clear abuse of discretion to the prejudice of the party complaining." To the same effect see: Stewart v. Cox, 55 Cal.2d 857, *986 865 [13 Cal. Rptr. 521, 362 P.2d 345]; Estate of Horman, 265 Cal. App.2d 796, 806-807 [71 Cal. Rptr. 780]; Virtue v. Flynt, 164 Cal. App.2d 480, 489 [330 P.2d 879]; Giomi v. Viotti, 144 Cal. App.2d 714, 718 [301 P.2d 597].
We observe no abuse of the trial court's broad discretion in denying defendants' motion to reopen.
The judgment is affirmed.
Molinari, P.J., and Sims, J., concurred.
NOTES
[1]  The instruction paraphrased the safety order which is here set out in full:

"1632. Floor, Roof, and Wall Openings to be Guarded. (a) If sheathing or any other surfacing provides a passageway that extends to any side of a floor or roof opening through which a man or material might fall, such opening shall be covered with planks or other secure covering of adequate strength to support any load that might be placed thereon, or it shall be fenced on all sides by a railing and toeboard.
"Said covering shall be secured in place to prevent accidental removal or displacement, and it shall bear an approved pressure sensitized sign or equivalent with letters not less than 1 inch or more high, stating:
"`Floor (Roof) Opening  Do Not Remove'
"Openings in concrete forms must be similarly safeguarded as soon as the form sheeting surrounds the opening and until the hazard is eliminated by placement of reinforcing steel or completion of permanent protection.
"(b) If any part of a runway or scaffold platform is directly above or adjacent to a floor or roof opening, the entire opening shall be completely covered with planking or other substantial material, unless the runway or scaffold is provided with a railing and toe board.
"(c) All planks, railings, or barriers guarding floor, roof, or wall openings shall be left in place until further construction provides permanent protection or an effective hazard control. Work shall be arranged so that openings are left unprotected for the least time possible during the transition from temporary to permanent safeguards. See Article 20 for other floor requirements."
[2]  In its brief, defendant Oscar C. Holmes, Inc. states that the safety order instruction was not tendered the court until after the parties had rested. This does not appear from the record, except from the following unsworn recital of a memorandum in support of a motion for new trial filed five weeks later: "As the court will well recall, plaintiff's jury instructions were not submitted to the court until all the evidence was in...." In any event such a tender at that time would seem proper as an additional proposed instruction "to the jury upon questions of law developed by the evidence and not disclosed by the pleadings...." (See Code Civ. Proc., § 607a.)


166 F.2d 98 (1948)
ARKANSAS OAK FLOORING CO. et al.
v.
LOUISIANA & ARKANSAS RY. CO.
No. 11966.
Circuit Court of Appeals, Fifth Circuit.
February 20, 1948.
Writ of Certiorari Denied May 24, 1948.
Nicholas J. Gantt, Jr., of Pine Bluff, Ark., for appellants.
T. W. Holloman, of Alexandria, La., and A. L. Burford, of Texarkana, Tex., for appellee.
Before HUTCHESON, McCORD, and LEE, Circuit Judges.
Writ of Certiorari Denied May 24, 1948. See 68 S.Ct. 1338.
*99 HUTCHESON, Circuit Judge.
The suit was to collect the local rate of 20¢ per hundred pounds on shipments of 35 carloads of rough hardwood lumber, shipped from Woodville, Miss. and delivered to defendant at Alexandria, La., on varying dates from September 12, 1942, through May, 1943.
The claim was: that, under the provisions of Rough Material Tariff 140.[1] I.C.C. No. 1540, the shipments of rough lumber moved under, and plaintiff had collected from defendant, the net transit rate of 12¢ per hundred pounds; that defendant, as to each of such shipments, having failed to reship the manufactured tonnage as required by the tariff, the transit rate ceased to be applicable, and the carrier was required to exact, and the shipper to pay, the local rate less the credit of 12¢ already paid.
There were two defenses. One of these was estoppel by conduct in this: that defendant was not furnished with a copy of plaintiff's Rough Material Tariff; that it, therefore, did not know, nor was it informed, of the 12 months' limit for reshipment; that plaintiff had in times past permitted shipments of manufactured lumber after 12 months from delivery of the rough lumber; and that it had thus misled defendant and estopped itself from suing for the local rate as to the shipments in question. The other was that the cause of action as to each shipment had, under Sec. 16(3) (a) and (e) of 49 U.S.C.A., accrued on the delivery of the rough lumber at Alexandria more than two years before the suit was brought, and its bringing was, therefore, prescribed under that section.
The district judge, of the view that the tariff had the force of law and bound plaintiff and defendant equally, had no difficulty in rejecting the estoppel defense. As to the bar of the statute, he found: that, the lumber having been shipped under the Rough Material tariff on the 12¢ transit rate provided for thereby, plaintiff's cause of action for the 20¢ local rate did not, and could not, accrue upon delivery at Alexandria; that it accrued when the year provided in the tariff for the reshipment of the finished lumber had expired without such shipment; and that the suit, having been brought September 11, 1945, within two years, as to each shipment, of the time when suit could have been brought, was timely brought. He, therefore, gave judgment for plaintiff.
As to defendant's reliance on Sec. 16(3) (e), providing, "the cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after", the court followed Henwood v. McCallum & Robinson, Inc., 179 Tenn. 531, 167 S.W. 2d 981, 982. There it was determined that under a transit or "floating in" tariff on cotton of the general nature of the tariff in question here, "delivery", as used in the statute, must be held to refer to delivery not of the rough, but of the finished product, or, if there is failure of such delivery, the time when, for failure thereof, the higher or local rate became due and the cause of action for it accrued.
Appellant is here urging its defense of estoppel rather feebly, but pressing upon us vigorously and with confidence its defense of the statutory bar.
We need not dwell long on the defense of estoppel. The Rough Material Tariff, under which these shipments moved, is, as matter of law, controlling, and we know of no principle upon which the carrier could be estopped to demand payment in accordance with it. Indeed, the estoppel *100 in law works the other way. The carrier is estopped by the law from demanding or receiving, the shipper from paying, less than the full rate.[2]
On the question of the statutory bar, however, the path of the law is not so clear. Appellant insists: that the effect of the Rough Material Tariff and of the contract and bond given under it was not to prevent the causes of action for the local rate here sued on from accruing when the delivery of the rough lumber was made at Alexandria, the only delivery of property the carrier made in this case; that these had only the effect of an effort by contract to extend the period within which suit might be brought on the local rate; and that under Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96, they are wholly ineffectual to so extend it. Supporting its view, that this must be held to be the effect of the giving of the contract and bond, is the general principle declared in that case, that the statute intended to make the time to sue uniform in all cases. Supporting this view, too, is the generality of the statement of Subd. 3(e) of Sec. 16, "The cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after."
If, however, as contended by appellee, the Rough Material Tariff has the force and effect of law to fix the transit rate as the rate applicable when the shipment was delivered at Alexandria, then the causes of action for the local rate, on which plaintiff has sued, did not and could not then accrue. Indeed, they did not accrue until one year after the Alexandria delivery when defendant, having failed to ship manufactured lumber as required therein, the transit rate ceased to apply, and the local rate became applicable.
We agree with appellant that the parties could not, and neither could the commission, extend or restrict the period within which to sue after the cause of action had accrued. We agree with it, too, that if the transit rate is denied effect as a rate, lawfully fixed by tariff and given the effect only of an agreement for credit and for extension of time to pay, of course the rate due by the shipper was the 20¢ local rate. Of course, too, this rate would then be due when the rough shipment arrived at Alexandria, the cause of action would then accrue, and no agreement to delay suit would have any effect to extend the time within which to sue.
We agree with appellee, though, that it is plain enough that here is no private contract to extend the time to sue. Here is a binding tariff fixing a transit rate much less than the local rate, to be enjoyed by the shipper, upon conditions, one of which was that he enter into a contract and bond obligating himself to comply with the provision for the shipment of manufactured lumber upon pain of becoming disentitled to the transit rate and obligated to pay the local rate. If the Rough Material Tariff is thus given its legal effect, the local rate was not the applicable rate when the rough lumber delivery was made. The carrier had no right to claim it, and no cause of action for failure to pay it arose until, its provisions not having been complied with, the shipper lost its right to have the transit rate applied, the local rate became the applicable tariff, and the right to sue for it accrued.
If, therefore, it were not for the conflict presented by the attempt to apply both (a) and (e) of subd. (3), Section 16 to the facts of this case, it would present no difficulty whatever. For it is plain enough that the suit was brought within the two years after the cause of action had in fact accrued. The difficulty arises upon appellant's insistence that under Subd. 3(e), we are bound to hold that the cause of action, as that term is used in (a) and (e) of Subd. 3, for the local rate sued on here, in law arose when the delivery of the rough lumber was made, and that the contract under which, part of the local rate was collected, credit was extended for the balance, and *101 the carrier agreed to forbear suit for one year was a mere contract to extend the time to sue. We think this view more plausible than sound, and that the construction and application of the statute contended for by appellee accords with its common sense, its reasonable meaning and intent.
As pointed out in the Midstate case, the prime purpose of the statute, in fixing the same period after their accrual for suing on all actions, was to secure uniformity and to prevent discrimination. Full effect can be given this purpose if it is held that delivery by the carrier accrues the cause of action on all shipments under a tariff where the rate is then unalterably fixed. Where, however as here, the transit rate, the only collectible rate at the time of delivery, was, under the tariff subject to change within the year, the cause of action for the local rate cannot be said to have accrued at the time of the delivery but one year thereafter.
If this were a case where instead of collecting the freight on delivery as required under Sec. 3(2), 49 U.S.C.A., the carrier had, as provided in that section, merely extended credit under commission rules and regulations, the extension of credit would not, of course, at all affect the time within which the carrier might sue. But the bond and contract executed here were not executed for that purpose. They were executed for the purpose of enabling the shipper to avail itself of the Rough Material tariff by giving the promise, to ship out manufactured goods, upon which its right to that tariff depended.
Courts must, of course, construe statutes as they are written. They may not rewrite them to suit their views of what they think the statutes ought to say or to avoid difficulties in construing and applying them. On the other hand, when a court is presented with a situation of this kind where a clause drawn to cover, and covering, shipments moving to one destination is sought to be applied to shipments moving under transit tariffs, that is with two destinations in mind, it is not compelled to apply the clause literally or at all, if such application will result in applying the statute as a whole in a way completely contradictory of its main and paramount purpose.
The majority thinks it quite plain: that the main, the paramount purpose of Sec. 16(3) as a whole is, as stated in subdivision (a), to fix, as the time for suing, two years from the accrual of the cause of action; that a cause of action accrues only when the right to sue has fully matured;[3] and that subdivision (e) of the section was not intended to, nor does it, have any different effect.
It may not be doubted, we think, that plaintiff could not have sued for the local rate until 12 months after delivery of each shipment, nor could it have sued then unless defendant had failed, in compliance with the applicable transit tariff, to ship manufactured lumber as agreed.
We, therefore, hold that clause (e), Subd. (3), Sec. 16 of the Statute, providing that the cause of action will be deemed to have accrued at the time of the delivery of the shipment, while applicable in the case of a shipment under a tariff whose charges are due on delivery, is without application here. This is so because, under the terms of the tariff under which these shipments moved, the only charge which accrued on delivery or could accrue if its terms were carried out, was 12¢. The charge for which plaintiff sues, the 20¢ due on the local rate, crediting the 12¢ already paid, was not due on delivery and did not become due until 12 months thereafter. Clause (e) of the statute declaring that the cause of action accrued on delivery of the shipment could not, therefore, be reasonably interpreted as applying to this case.
We think that the right result was reached in the Henwood case, but we are not satisfied with the reasons there given. We do not agree with the statement there made that "delivery" as used in Sec. 16(3) (e) could and should be read as applying to the contemplated second, instead of the first, delivery, and thereby the statute made to square with the in transit tariff involved *102 in Henwood's case and here. We believe that the proper disposition of this case is to hold: that the dominant intent of the statute as a whole is to afford two years for suit after the right of action has accrued; that plaintiff's right to sue on the causes of action asserted here had not in fact accrued on the delivery of the shipment; that Sec. 16(3) (e) has, therefore, no application to a shipment of this kind; and that the case must be decided by determining, under Subd. (a), whether the suit was in fact brought within two years after the cause of action, that is the right to sue, had in fact and in law accrued. We think it was so brought and that the judgment must be affirmed.
LEE, Circuit Judge (dissenting).
The only shipments involved in this action are the shipments of rough hardwood lumber from Woodville, Miss., to Alexandria, La., between September 12, 1942, and May 12, 1943. The freight charges claimed by appellee represent the unpaid balance of charges from these shipments. By Section 3, paragraph 2 of the Interstate Commerce Act, 49 U.S.C.A. § 3(2), payment of freight at Alexandria was prerequisite to delivery of shipments by appellee. This payment, however, was subject to such rules and regulations as the Commission had prescribed.[1] Whether the finished products manufactured from this inbound rough lumber would be shipped out in sufficient tonnage within the time prescribed to secure a through-tariff rate under I.C.C. Tariff No. 1540 was, to put it mildly, uncertain. In order to secure the benefit of the through-transit rate and the credit privilege with respect to the freight then due, the appellant executed a contract agreeing to reship sufficient finished products within the time limit and gave bond to secure the payment of the amount of the unpaid freight if it failed to reship as it had agreed. Appellant failed to keep its agreement. It never shipped out the finished product, hence the through-rate never came into existence. Appellee's claim, therefore, is, as stated, for the unpaid balance of the freight on the shipments of rough lumber into Alexandria. By Section 16(3) (e), appellee's cause of action accrued when these shipments were delivered at Alexandria on and prior to May 12, 1943.[2] Under Section 16(3) (a), the cause of action became extinct two years after the cause of action accrued and could not be extended by agreement.[3] Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96.
I would reverse the judgment appealed from.
NOTES
[1]  In order to secure the net transit rate of 12¢ and the credit privileges held out in the tariff, the tariff required the defendant to execute a contract and bond agreeing to reship finished products manufactured at Alexandria from the inbound rough lumber, weighing 30% thereof, within 12 months from the date of paid freight bills covering inbound movements of such rough hardwood lumber. If defendant failed to ship out within the time prescribed thereby sufficient manufactured tonnage to fulfill the requirements of the tariff, the net transit rate no longer applied, but the full local rate, 20¢ for 100 pounds, which should and would have applied on the shipments involved in this case except for the rough material tariff and defendant's executing contract and bond in compliance therewith, became applicable.
[2]  Midstate Horticultural Co. v. Pennsylvania R. Co., 320 U.S. 356, 64 S.Ct. 128, 88 L.Ed. 96; Boone v. United States, 6 Cir., 109 F.2d 560; Crancer v. Lowden, 315 U.S. 631, 62 S.Ct. 763, 86 L. Ed. 1077.
[3]  Federal Reserve Bank, etc., v. Atlanta Trust Co., 5 Cir., 91 F.2d 283, 284, 117 A.L.R. 1160; United States v. Wurts, 303 U.S. 414, 58 S.Ct. 637, 82 L.Ed. 932.
[1]  49 U.S.C.A. § 3 (2) provides: "No carrier by railroad subject to the provisions of this chapter shall deliver or relinquish possession at destination of any freight transported by it until all tariff rates and charges thereon have been paid, except under such rules and regulations as the commission may from time to time prescribe to govern the settlement of all such rates and charges * * *." (Emphasis added.)
[2]  49 U.S.C.A. § 16(3) (e) provides: "The cause of action in respect of a shipment of property shall, for the purposes of this section, be deemed to accrue upon delivery or tender of delivery thereof by the carrier, and not after."
[3]  49 U.S.C.A. § 16(3) (a) provides: "All actions at law by carriers subject to this chapter for recovery of their charges, or any part thereof, shall be begun within two years from the time the cause of action accrues, and not after."


934 F.Supp. 535 (1996)
Arthur S. BECHHOEFER, Plaintiff,
v.
The UNITED STATES DEPARTMENT OF JUSTICE, DRUG ENFORCEMENT ADMINISTRATION, Robert Nearing and Jeffrey Gelina, Defendants.
No. 95-CV-6326L.
United States District Court, W.D. New York.
August 2, 1996.
*536 Anthony J. Adams, Jr., Davidson, Fink, Cook & Gates, Rochester, NY, for plaintiff.
Brian M. McCarthy, Asst. U.S. Atty., Rochester, NY, for defendants.

DECISION AND ORDER
LARIMER, Chief Judge.
Plaintiff, Arthur S. Bechhoefer, commenced this action under the Privacy Act ("the Act"), 5 U.S.C. § 552a, and the First Amendment to the United States Constitution. Defendants are the Drug Enforcement Administration ("DEA") of the United States Department of Justice, and two DEA agents, Robert Nearing and Jeffrey Gelina. Defendants have moved for summary judgment, and plaintiff has cross-moved for partial summary judgment on the issue of liability on his claim against the DEA.

FACTUAL BACKGROUND
Plaintiff, who resides in Yates County, New York, belongs to a group known as the Bluff Point Association, Inc., and to an affiliated group, Friends of Keuka Lake. These groups are concerned with land use in the Keuka Lake area. As an officer of these groups, plaintiff alleges that part of his duties relates to crime and security in the area. He states that occasionally local residents have contacted him to report suspected drug activities in the area.
Plaintiff alleges that on July 15, 1993, after he had received one such report, he called *537 defendant Gelina on the telephone to pass the information on to the DEA. Gelina told plaintiff to put his information in a letter and send it to him.
Plaintiff agreed to send Gelina a letter, but he alleges that he did so only after receiving Gelina's assurances that the letter would remain confidential. Gelina alleges that he told plaintiff that he would try to keep the letter confidential, but that he could not guarantee its confidentiality.
Plaintiff did send a letter to Gelina. The letter, which contained the heading, "CONFIDENTIAL," named certain people suspected of involvement in drug trafficking. Some of the persons mentioned were members of the Yates County Sheriff's Department ("the Sheriff's Department"). Plaintiff stated in the letter that "[t]he Sheriff's Department cannot be trusted to provide any security, nor can its members be considered reliable." Defendants' Motion Ex. 2.
At some point, Michael J. Christensen, an investigator with the Sheriff's Department, became aware of the letter. Christensen was one of the persons named in the letter. Although the letter did not explicitly accuse him of any wrongdoing, plaintiff wrote that Christensen had been the "right hand man" of a former Undersheriff, who plaintiff stated "may be involved in the distribution of drugs ..." Defendants' Motion Ex. 2.
Nearing and Gelina had arranged to meet plaintiff to discuss his allegations, but for some reason the meeting did not occur. Eventually plaintiff became dissatisfied with the way that Nearing and Gelina were handling the matter and refused to meet with them unless they sent him their "credentials," which they declined to do. Bechhoefer Affidavit Ex. C.
Nearing and Gelina decided not to pursue the matter any further. They did, however, send a copy of the letter to the Sheriff's Office. Gelina alleges that he did so at the request of the Sheriff's Office and at the direction of DEA's then-Resident Agent in Charge, James Kenney. Christensen states in a document filed in a related state court action, that Nearing faxed it to him on August 5, 1993. He states that he called the DEA office that day and spoke to Gelina. Christensen asked Gelina if he had ever gotten the letter and Gelina stated that he had. Christensen left a message for Nearing to call him, which Nearing did shortly thereafter. Christensen asked Nearing about the letter, and Nearing stated that it was from Bechhoefer. Christensen asked if he could have a copy of the letter, and Nearing promised to fax him a copy.
As a result of these events, plaintiff was later prosecuted by the Yates County District Attorney for making false statements. The charges were eventually withdrawn. Plaintiff also alleges that a separate criminal prosecution was brought against him, which resulted in his acquittal after a jury trial. He has also been sued, apparently for defamation, in three actions in state court.
Based on these allegations, plaintiff asserts two causes of action: first, a claim against the DEA under the Privacy Act, and, second, a claim against Gelina and Nearing under the First Amendment.

DISCUSSION

I. Privacy Act Claim
The first cause of action is based on 5 U.S.C. § 552a, which provides in part that "[n]o agency shall disclose any record which is contained in a system of records ... to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, ..." with certain exceptions that will be discussed below.
Defendants contend that plaintiff's claim must fail because the letter in question does not constitute a "record" and is not a document contained in a "system of records." Because I believe that the letter is not a "record," judgment must be entered in favor of defendants and plaintiff's complaint must be dismissed.
The threshold issue concerning this claim is whether the letter at issue was a "record." The Act defines a "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency, ... and that contains his name ... or other identifying particular ..." 5 U.S.C. *538 § 552a(a)(4). Defendants contend that the letter is not a record for purposes of this action because it was not a document "about" plaintiff but only about persons other than plaintiff.
In support of their position, defendants rely upon Unt v. Aerospace Corp., 765 F.2d 1440 (9th Cir.1985), in which the court, by a 2-1 majority, held that a letter sent by an employee of the defendant corporation to a federal agency regarding certain disputes he was having with his employer was not a record because it was not "about" him, but about the employer. The court said that the letter reflected directly on the employer's performance of its federal contract, but "only indirectly on any quality or characteristic possessed by" the plaintiff. Id. at 1449. Although the letter mentioned the plaintiff's problems with the employer, the court held, "this fact d[id] not change the communication into an item about him." Id.
In Tobey v. NLRB, 40 F.3d 469, 471 (D.C.Cir.1994), the District of Columbia Circuit also examined the requirement that information be "about" a person in order to constitute a record with respect to that person. The court stated that "the fact that information contains an individual's name does not mean that the information is `about' the individual." To be "about" a person, the court stated, the information must not simply "apply to" him, but must "actually describe[] the individual in some way." Id. at 472. Applying that reasoning to the facts before it, the court held that a computer system used by the National Labor Relations Board to track and monitor cases before it, although it contained information showing which field examiner was assigned to a particular case, was not "about" the examiners. Id. at 471.
In my view, the language of the statute and the reasoning of these cases compel the conclusion that the letter at issue in the instant case was not a "record" with respect to plaintiff because it was not "about" him. Both here and in Unt, the letters were not "about" the authors of the letters, but about the subjects of the letters: in Unt, the author's employer, and here, certain alleged drug dealers.
Although there might be situations in which a letter could contain sufficient information about the author to be deemed "about" the author, this is not such a case. Plaintiff's letter contained many accusations of illegal activity on the part of various other persons, but said virtually nothing about plaintiff himself. If the letter was "about" anyone, it was about the people that plaintiff accused of criminal activities, not about himself. Unt, 765 F.2d at 1449.[1]
In opposition to defendants' motion, plaintiff relies principally upon Sterling v. U.S., 798 F.Supp. 47 (D.D.C.1992)[2] in which the court denied a motion to dismiss a Privacy Act claim by a prisoner who alleged that the government had violated the Act by releasing, in response to a Freedom of Information Act request by his cellmate, a redacted copy of a document containing information about the cellmate that the plaintiff had provided to prison authorities under a promise of confidentiality. The plaintiff claimed that despite the redactions, his cellmate was able to deduce from the contents of the letter who had provided the information, and that as a result the plaintiff was subjected to death threats. In reaching its decision, the court stated that 5 U.S.C. § 552a(k)(2) exempts investigatory material from release if "the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence." Id. at 49.
*539 I do not find the Sterling court's analysis persuasive. A close examination of the statute indicates that § 552a(k)(2) does not prohibit agencies from releasing material that would reveal the identity of a confidential source. Rather, it allows agencies to promulgate rules exempting certain types of documents from mandatory disclosure under other portions of the Act. Specifically, subsection (k)(2) states that "investigatory material compiled for law enforcement purposes" may be exempted from, inter alia, § 552a(d) (which provides that agencies must generally allow any person to gain access to his own record),
[p]rovided, however, that if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence ...
The statute, then, states that under certain circumstances an agency must provide an individual with investigatory material, unless doing so would reveal the identity of a confidential source. In other words, an agency is not required to provide the material if it would thereby reveal the source's identity, but the statute nowhere prohibits the agency from providing such material. See Rutner v. Reed, 538 F.2d 443, 445 n. 1 (D.C.Cir.1976) (§ 552a(k)(2) "provides specific authority to withhold" information received under a promise of confidentiality) (emphasis added).
Thus, although the DEA has issued rules exempting certain materials pursuant to § 552a(k)(2), see 28 C.F.R. § 16.98, the effect of those rules is simply to relieve DEA of any obligation to release those materials upon the request of a person who would otherwise be entitled to see them. The rules do not state that information from a confidential informant cannot be released under any circumstances.
It is apparent, then, that plaintiff's reliance on § 552a(k)(2) is misplaced. It is clear from the statute that restrictions upon disclosure are set forth in § 552a(b), which is entitled "Conditions of Disclosure," and which states that "[n]o agency shall disclose any record which is contained in a system of records ...," except in certain circumstances. Had Congress wanted to prohibit agencies from disclosing information that would reveal the identity of confidential sources, subsection (b) would have been the logical and obvious place to do so. Subsection (k), on the other hand, which is entitled "Specific exemptions," is clearly not intended to prohibit agencies from releasing certain types of information, but simply to allow them to avoid the Act's mandatory-disclosure requirements for such information. Subsection (k), then, is irrelevant to this case.[3]
I conclude, therefore, that plaintiff's letter was not a "record" for purposes of this action because it was not "about" plaintiff. Under § 552a(b), defendants were accordingly not obligated to obtain plaintiff's permission to release the letter, and plaintiff's claim under the Privacy Act therefore fails.[4]

II. First Amendment Claim
In his second cause of action against Gelina and Nearing, plaintiff alleges that the agents violated plaintiffs First Amendment *540 rights to free speech and to petition the government. This claim is asserted directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in which the Supreme Court held that plaintiff's may sue federal officials for damages arising from the officials' violation of the plaintiff's constitutional rights.
Plaintiff contends that disclosure of the letter to the Sheriff's Department "punished" him for exercising his First Amendment rights. I am not persuaded by this contention.
Because Bivens actions and actions under 42 U.S.C. § 1983 "share the same `practicalities of litigation,' federal courts have typically incorporated 1983 law into Bivens actions." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (quoting Burnett v. Grattan, 468 U.S. 42, 50, 104 S.Ct. 2924, 2930, 82 L.Ed.2d 36 (1984)). Thus, § 1983 cases involving First Amendment claims are relevant to an analysis of plaintiff's claims in the case at bar.
Although plaintiff asserts that defendants violated two separate rights  his right to free speech and his right to petition the government, which includes the right to approach investigative and prosecutorial authorities concerning alleged unlawful activities, see Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1353 (2d Cir.1994), the gist of these claims is the same: that by sending the letter to Christensen, defendants in effect retaliated against plaintiff because he had provided them with information about suspected drug activity. Assuming that plaintiff's actions did amount to an exercise of both of these First Amendment rights, then, for purposes of the summary judgment motions this cause of action can be analyzed as a single claim.
To establish a violation of one's rights under the First Amendment, a plaintiff must show that the defendants took some action against him because of his exercise of those rights. See, e.g., Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir.), cert. denied, ___ U.S. ___, 116 S.Ct. 173, 133 L.Ed.2d 114 (1995). Plaintiff has presented no evidence whatsoever of such action here. The mere fact that the agents sent a copy of the letter to the Sheriff's Department does not suggest any desire on their part to punish plaintiff or that they were somehow motivated by the fact that plaintiff had written the letter. Furthermore, there is no indication that they were in any way involved in instituting the criminal prosecutions or civil lawsuits against plaintiff subsequent to the letter's distribution. Thus, the acts that were allegedly taken against plaintiff on account of his exercise of his rights were not even taken or instigated by the agents.

CONCLUSION
Defendants' motion for summary judgment (Item 10) is granted. Plaintiff's cross-motion for partial summary judgment (Item 15) is denied. The complaint is dismissed.
IT IS SO ORDERED.
NOTES
[1]  Although the court in Tobey rejected the Ninth Circuit's requirement, set forth in Unt, that the information "reflect some quality or characteristic" of the individual involved, see Tobey, 40 F.3d at 472, the result that I reach in the case at bar would be the same under either circuit's standard.
[2]  Subsequent to its 1992 decision denying the motion to dismiss, the district court in Sterling granted summary judgment for the defendants on the ground that the plaintiff had not presented any evidence that defendants had acted intentionally or willfully. Sterling v. United States, 826 F.Supp. 570 (D.D.C.1993). On appeal by the plaintiff, the Court of Appeals for the District of Columbia Circuit, in an unpublished opinion, affirmed. 1994 WL 88894 (D.C.Cir. Mar. 11, 1994) (per curiam)).
[3]  I also note that plaintiff's complaint alleges only a violation of § 552a(b); subsection (k) is mentioned only in plaintiff's response to defendants' motion.
[4]  Although it appears highly doubtful whether this solitary letter, which defendants passed on to Deputy Christensen, was contained in a "system of records," see, e.g., Boyd v. Secretary of the Navy, 709 F.2d 684, 686-87 (11th Cir.1983) (memorandum prepared by plaintiff's supervisors, which was prepared on official Navy stationery and labeled "memorandum for the record," was not in a "system of records," since it was not keyed to plaintiff's name and was kept in a random-type file, and hence was not protected from disclosure under Privacy Act), cert. denied, 464 U.S. 1043, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984), my finding that the letter was not a record makes it unnecessary for me to reach that question, or defendants' assertion that disclosure of the letter was permitted under the Act as a "routine use."


     Case: 11-41188     Document: 00511963887         Page: 1     Date Filed: 08/21/2012

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 21, 2012
                                     No. 11-41188
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN OSBALDO CARMONA-BENAVIDEZ, also known as Ruben Osbaldo
Carmona, also known as Ruben O. Carmona,

                                                  Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:11-CR-89-1

Before SMITH, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        The attorney appointed to represent Ruben Osbaldo Carmona-Benavidez
has moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Carmona-Benavidez has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous issue

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
  Case: 11-41188   Document: 00511963887    Page: 2   Date Filed: 08/21/2012

                               No. 11-41188

for appellate review. Accordingly, counsel’s motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

                                     2


826 A.2d 972 (2003)
William GARDNER, et al.
v.
CUMBERLAND TOWN COUNCIL et al.
No. 2001-290-M.P.
Supreme Court of Rhode Island.
June 30, 2003.
*973 Thomas Hefner, Esq., Scott Partington, Esq., Richard Kirby, Esq., Cumberland, for Plaintiff.
Mortimer Newton, Esq., for Defendant.
Present: WILLIAMS, C.J., and FLANDERS, and GOLDBERG, JJ.
*974 OPINION
FLANDERS, Justice.
Abandoned, unnamed, and existing only on paper, a town streetsurrounded by abutting property ownersawaits its fate on this petition for certiorari. But do we have jurisdiction to review the merits of a town council's decision to abandon the street? Because such an act is legislative in nature, we answer this question in the negative. We also reject various procedural challenges to the propriety of the council's abandonment order because we conclude that, in this case, the council satisfied the statutory notice and hearing provisions. Finally, we hold that, by attending the meeting at which the council voted to abandon the road, the plaintiffs, William and Flora Gardner (the Gardners), lack standing to complain about the town's alleged failure to serve them with personal notice of the council's abandonment order.
Facts and Travel
Official maps in the Town of Cumberland (town) depicted an unnamed paper street in the town running perpendicular to Ryan Avenue and parallel to Mendon Road. The defendant David Miller and his wife (the Millers) owned property on both sides of this unnamed paper street. The Gardners operated a flower and gardening center on their property, which also abutted the unnamed paper street at its southerly end.
In 1996, the Millers petitioned the seven-member Cumberland Town Council (council) to abandon the paper street. The Gardners objected. The Millers withdrew the petition, but refiled it in 1998. Eventually, on March 4, 1998, the council referred this petition to the town's planning board, which recommended against the proposed abandonment. Thereafter, the council continued the petition several times without taking action on it. Ultimately, however, it duly notified the Gardners and other abutting owners that it would hold hearings on the petition, and publicly advertised that it would do so.
Pursuant to these notices and advertisements, the council initially convened a public hearing on the matter on April 1, 1998, but, at the Millers' request, it voted to continue the hearing for several months. The council again took up the petition, on October 7, 1998, when it heard from several witnesses, and received other evidence on the merits of the abandonment petition. It then continued the hearing on this subject to its meeting on November 4, 1998, after which it again put the matter over to its next meeting, on December 2, 1998. At this December meeting, after further discussion of the petition, the council voted unanimously to abandon the street.[1] All seven council members were present, including three members who were newly elected to their positions in November. Both the Millers and the Gardners also were present, as were their attorneys. Indeed, the attorneys for these parties expressed concern about the council's voting on the petition without the three new council members having been present at the council's previous meetings during which it heard testimony, received evidence, and heard arguments about the street in question. Nevertheless, the Gardners' attorney specifically asked the council to vote on whether the street should be abandoned. The town solicitor asked the new council members whether they felt comfortable voting on the abandonment petition *975 at that time. The new members all said that they were familiar with the matter and felt comfortable voting on the petition. The town solicitor advised the council members that the abandonment petition presented them with the issue of whether the street had ceased to be useful to the public. Thereafter, the council voted seven to zero in favor of abandoning the unnamed paper street.
The Gardners attempted to appeal the council's order to the Superior Court. But that court dismissed the appeal for lack of jurisdiction, indicating that G.L.1956 § 24-6-1,[2] which addresses the abandonment of highways or driftways by towns, does not specifically provide for such a right of appeal. As a result, although the Gardners initially appealed to this Court from the Superior Court judgment dismissing their complaint, they also petitioned this Court for the issuance of a writ of certiorari to review the council's abandonment order. In response, we issued the writ and granted the Gardners' motion to consolidate their appeal with the certiorari petition. Thereafter, however, the Gardners and the Millers jointly moved to dismiss the Gardners' appeal of the Superior Court judgment, which we granted. Thus, the only case pending before us is the Gardners' petition for certiorari.
The Gardners argue that the council's vote to abandon the road was invalid and that we should deem its approval of the abandonment petition to be a nullity. They contend that: (1) the vote to abandon the unnamed paper street violated applicable legal requirements because fewer than four of the council members heard all the evidence pertaining to the petition to abandon; (2) the vote by the council was erroneous in view of the reliable, probative, and substantial evidence on the record because all who testified at the council's abandonment hearings stated that members of the public still were using the street; (3) the council applied a different standard of review in approving the petition than the one that § 24-6-1 prescribes; (4) the Millers did not prove by clear and convincing evidence that the unnamed paper street ceased to be useful to the public; (5) the council violated § 24-6-1 because it failed to serve personal notice of its abandonment order upon the Gardners after it granted the Millers' petition; and (6) the council failed to set forth in its order any findings of fact and reasons for abandoning the road.
For the reasons summarized in this paragraph and detailed in the rest of our opinion, we reject these contentions. Because the council's order to abandon the street was a "final and conclusive" legislative act, see § 24-6-1(a), we lack jurisdiction to review the merits of this decision on certiorari. In addition, the Gardners' *976 procedural arguments fail because the council possessed a quorum when it voted in December 1998 to abandon the unnamed street in question and applicable law did not require council members voting thereon to have attended any previous hearings on this subject. In this case, we conclude, it was sufficient that the hearing minutes and the videotapes of the previous hearings on the petition were available for review by those council members who were not present at those hearings before they voted to abandon the street on December 2. Finally, the law did not require the council to set forth findings of fact or reasons for abandoning the road in its order granting the petition.
Also, the Gardners lack standing to complain about the town's alleged failure to effect personal service on them of the council's abandonment order because they and their lawyer attended the meeting at which the council members voted to abandon the unnamed paper street. Thus, because they received actual notice of the council's decision to abandon the street, they suffered no prejudice from any alleged lack of personal service on them of the order in question. Below, we elaborate on these reasons for denying the Gardners' petition for certiorari.
Analysis
I
The Merits of the Council's Abandonment Order
A petition for certiorari will not lie to review an act of legislative discretion. Godena v. Gobeille, 88 R.I. 121, 126-27, 143 A.2d 290, 293 (1958). See also The Newport National Bank v. Hawksley, 92 R.I. 433, 436, 169 A.2d 616, 618 (1961); Lumb v. Zoning Board of Review of Bristol, 91 R.I. 498, 504, 165 A.2d 504, 507 (1960). "Every act involving judgment or discretion is not necessarily a judicial act even though notice and hearing be required [by statute] before such act may be performed." The Newport National Bank, 92 R.I. at 437, 169 A.2d at 618 (quoting R.I. Home Builders, Inc. v. Hunt, 74 R.I. 255, 258, 60 A.2d 496, 498 (1948)).
"The determination of whether an act is judicial or quasi-judicial and not in substance purely legislative or administrative in character depends upon the nature of the act rather than the officer or body performing it.' Where a council acts not to determine presently contested rights but to direct some action in the future on the basis of policy or expediency it is acting legislatively and not judicially." Godena, 88 R.I. at 126-27, 143 A.2d at 293 (quoting R.I. Home Builders, Inc., 74 R.I. at 258, 60 A.2d at 498).
When a town council decides to abandon a road or street because it has ceased to be useful to the public, it is acting prospectively and thus, "[w]hether it is expedient to discontinue a highway is a question for legislative decision * * *." Id. at 127, 143 A.2d at 293 (quoting 2 Elliott, Roads and Streets § 1182 (4th ed.1926)); see also Attorney General v. Shepard, 23 R.I. 9, 12-13, 49 A. 39, 41 (1901). Therefore, we lack jurisdiction on certiorari to review the Gardners' challenge to the merits of the council's decision to abandon the street in question. This is so because a town council's act in deciding whether the town should abandon a public highway because it "ceased to be useful to the public" under § 24-6-1 is a final and conclusive legislative determination that is immune from judicial review:
"[W]hen a town council acting under this statute [§ 24-6-1] passes on the question of whether a highway 'has ceased to be useful to the public,' it is in fact making a determination of the expediency of the proposed abandonment. This is an exercise of purely legislative discretion *977 which we will not review by writ of certiorari." Godena, 88 RI. at 128, 143 A.2d at 293. (Emphasis added.)
In this case, the council fully complied with the procedural requirements set forth in the abandonment provisions of §§ 24-6-1 and 24-6-2. The council strictly followed the statutory requirements because, pursuant to § 24-6-1, it served the Gardners and other abutting owners with personal notice of the abandonment petition. Pursuant to § 24-6-2, it also provided the Gardners and other abutters with notice and an opportunity to be "heard for or against the abandonment[.]" See Wolfe v. City of Providence, 77 RI. 192, 205, 74 A.2d 843, 850 (1950) (explaining that when deciding whether to abandon a public street or highway a municipality must grant due process to the abutters of the street or highway subject to abandonment). Through their attorney, the Gardners appeared before the council; they provided testimony and photographs, as well as reasons why the town should not abandon the street; but they did not provide the council with any information about any alleged damages they would suffer as a consequence of the alleged abandonment, nor did they object to the council's failure to address damages in its decision. Thus, we hold, the council satisfied the procedural requirements with respect to the legislative aspects of this proceeding. The council did not ignore or violate the due-process protections set forth in the applicable statutes. As the Court explained in D'Agostino v. Doorley, 118 R.I. 700, 706, 375 A.2d 948, 951 (1977), the statutory process for abandonment must be followed scrupulously to secure the validity of the abandonment proceedings, but that is just what the council did in this case.
Thus, we must respectfully disagree with our dissenting colleague's opinion that "this case represents sloppy and uninformed practices by a newly elected town council."
Nevertheless, even though the council's determination concerning whether to abandon the street was an unreviewable legislative act, the council's concomitant duty to assess whether the abandonment caused any damages to abutting land owners such as the Gardners constituted a quasi-judicial act. See Godena, 88 R.I. at 126-27, 143 A.2d at 293. Thus, § 24-6-2 entitled abutting landowners such as the Gardners to pre-abandonment notice of the proposed abandonment, so that they could "appear, if they [saw] fit, and be heard for or against the abandonment, and as to the damage, if any, which they [would] sustain thereby." See also § 24-6-3 (entitling abutting owners to receive compensation from the town "for the damages, if any, sustained by them by reason of the abandonment"). The Gardners received this notice, appeared before the council, and fully availed themselves of the opportunity to argue against the proposed abandonment.
But the Gardners have not challenged the damages aspect of the council's proceedings with respect to the abandonment of this street, nor have they objected to any of the procedures that the council used or failed to use with respect to the assessment (or lack thereof) of any damages caused to them by the abandonment. We recognize that, under certain circumstances, an abutting property owner on an abandoned street may have a compensable right to have access to the street that cannot "be taken away by closing the highway without payment of just compensation." Wolfe, 77 R.I. at 205, 74 A.2d at 850. But the Gardners have not challenged this aspect of the council's proceeding, nor have they asserted any error in *978 the town's failure to pay them just compensation. Rather, their entire focus has been on the alleged impropriety of the council's legislative decision to abandon the road. Thus, we do not address the council's procedures or actions with respect to the assessment of damages because the Gardners did not raise this issue with the council or with us in their petition for certiorari. Moreover, if they had been aggrieved by the council's failure to award them damages, then their remedy was not to petition this Court on certiorari, but to petition the Superior Court and request that a jury assess their damages. See § 24-6-4.[3]
Finally, for the reasons previously stated, we also reject the Gardners' arguments that the Millers' allegedly failed to carry their burden of proof, that the quality and quantum of evidence to support such an abandonment was lacking, and that the council erred by failing to include findings of fact and reasons for the abandonment in any written decision or in its order granting the petition. However appropriate such specific procedural mechanisms may be to assessing the validity of judicial or even quasi-judicial proceedings, they are simply inapplicable to a legislative act such as this order of abandonment. See, e.g., Smithfield Concerned Citizens for Fair Zoning v. Town of Smithfield, 907 F.2d 239, 245 (1st Cir.1990) ("A broad latitude is given to legislative bodies such as the Town Council in their legislative determinations, and it is not the province of the courts to monitor the inputs into each legislative decision.").
II
Procedural Requirements Under § 24-6-1
Although it is not our province to review the discretionary aspects of a legislative act, we will review on certiorari petitioners' various procedural challenges to the council's road-abandonment order. The Gardners first assert that the council lacked a quorum at its December 1998 meeting, when it voted to approve the petition to abandon the unnamed paper street. This is so, they argue, because only three of the council members who attended that December meeting also were present to hear all the evidence presented at the two previous council meetings, in October and November 1998, when the council heard from certain witnesses and received other evidence concerning the abandonment petition. Section 408 of the Code of Ordinances of Cumberland, Rhode Island (Cumberland Code), indicates that "[flour (4) members of the Town Council shall constitute a quorum for the transaction of business, but a smaller number *979 may adjourn from time to time." We construe the word "business" as referring to the council's decision-making process. Cf. In re Rhode Island Commission for Human Rights, 472 A.2d 1211, 1212, 1214 (R.I.1984) (explaining that the word "business" as used in G.L.1956 § 28-5-10 indicating that "[t]hree (3) members of said commission shall constitute a quorum for the purpose of conducting the business thereof"refers to "the decision-making process," so that the commission requires a quorum to examine facts, consider evidence, and reach conclusions, but not to gather facts).
In this case, however, all seven council members were present for the decision-making process that occurred at the meeting on December 2, when the council voted to abandon the paper street in question. Seven council members also were present during most of the fact-gathering that occurred at the October and November council meetings. The mere fact that a majority of the council members present on December 2 were not also present during all portions of all previous council hearings on this petition did not deprive the council of a quorum on December 2, nor did it undermine the legitimacy of its legislative vote on that date to abandon the unnamed street. Moreover, even in a quasi-judicial contextas, for example, in In re Rhode Island Commission for Human Rights, 472 A.2d at 1214we have held that "when a quorum of the commission reache[d] its decision after having access to a transcript of the hearing and also the evidence * * * [t]here is a presumption, soundly established, rationally reached, that administrative officials will properly consider the evidence before they reach a decision." This principle is in accord with the general rule that "in the absence of specific statutory direction to the contrary the deciding member or members of an administrative or quasi-judicial agency need not hear the witnesses testify. * * * The general rule is that it is enough if those who decide have considered and appraised the evidence." Younkin v. Boltz, 241 Md. 339, 216 A.2d 714, 715 (1966). Thus, even though only three of the seven council members who voted to abandon the road at the council's December 1998 meeting also were present during all parts of the October and November council meetings when the council also held hearings on this subject, we hold that the council's decision was valid because we presume, as indicated in In re Rhode Island Commission for Human Rights, that all seven council members who voted in favor of abandonment did so after educating themselves about the evidence pertaining to the merits of the petition before voting thereon. The record shows that written minutes and videotapes of the previous council hearings on the abandonment petition were available for review by the new council members before they voted to approve the petition on December 2, 1998. In these circumstances, "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131, 142-43 (1926).
Indeed, "[a]ll reasonable presumptions must be indulged in support of the action of the officers to whom the law entrusted the proceedings * * *." Ross v. Stewart, 227 U.S. 530, 535, 33 S.Ct. 345, 348, 57 L.Ed. 626, 629 (1913). "And in ascertaining whether an 'informed' decision has been made, the courts accord the decision the presumption of regularity to which it is entitled * * * and refrain from probing the mental processes of the * * * [deciding officers] in reaching [their] conclusions.'" *980 Taub v. Pirnie, 3 N.Y.2d 188, 165 N.Y.S.2d 1, 144 N.E.2d 3, 6 (N.Y.1957). Because they were not acting in a judicial capacity or assessing the credibility of witnesses on a contested factual issue, council members did not have to be physically present at any previous hearings or to have heard in person all the evidence that might be relevant to a particular legislative decision before they could cast their vote on such a matter. And section 408 of the Cumberland Code did not require that at least four of the same council members who eventually voted on a petition to abandon a street also must have been present at all previous hearings that pertained to such a decision before the council's vote thereon would be deemed valid. Thus, the Gardners were not deprived of the opportunity to be heard since at least a quorum of the duly elected council was present at all council meetings relating to the proposed abandonment, including the December 2 meeting at which the council voted unanimously to abandon the street.[4]
III
Personal Service of the Abandonment Order
The Gardners' final argument is that the council's abandonment order was ineffective and void because the town failed to serve them with personal notice of the order abandoning the paper street. After a town council orders or decrees the abandonment of a street, § 24-6-1(a) provides that "personal notice shall be served upon every owner of land abutting upon that part of the highway or driftway which has been abandoned * "." The records we have received from the town in response to the writ fail to indicate whether the town caused the Gardners to receive personal service of the council's abandonment order. But even assuming, without deciding, that the town failed to serve the Gardners personally with notice of the council's abandonment decree, we hold that this circumstance is of no legal consequence in this case because the Gardners and their attorney attended the December 1998 meeting at which the council approved the petition to abandon the street in question. Thus, they are deemed to know that this event occurred, thereby satisfying the notification purpose for requiring personal service of the order.
Personal attendance at a meeting of a government body constitutes a waiver of the right to object to any defect concerning the notice of any proceedings that occur at that meeting, unless "the person who raises the issue of the defect in notices be in some way disadvantaged or *981 aggrieved by such defect." Graziano v. Rhode Island State Lottery Commission, 810 A.2d 215, 222 (R.I.2002) (holding that the plaintiffs lacked standing to object to the legal sufficiency of a prehearing notice for a Rhode Island Lottery Commission meeting because they attended the meeting in question and, consequently, were aware of its purpose and what happened at the meeting); see, e.g., Ryan v. Zoning Board of Review of New Shoreham, 656 A.2d 612, 616 (R.I.1995) (explaining that a party who appears before the zoning board waives their right to object to an apparent deficiency in the notice for the hearing); Estate of Konigunda v. Town of Coventry, 605 A.2d 834, 835 (R.I.1992) (holding that a petitioner represented by an attorney waived the right to object to lack of notice concerning a governmental meeting by appearing and opposing the official action taken at the meeting); Zeilstra v. Barrington Zoning Board of Review, 417 A.2d 303, 307 (R.I.1980) (stating that a party appearing before a zoning board waives the right to object to a claim that it failed to receive proper notice); Champagne v. Zoning Board of Review of Smithfield, 99 R.I. 283, 287-88, 207 A.2d 50, 53 (1965) (acknowledging the principle that attending a zoning board hearing amounts to a waiver of the notice requirements).
Here, the actual notice of the abandonment order that the town may not have served personally on the Gardners contained no "particulars" of which the Gardners were not otherwise aware. Flora Gardner was present at the initial hearing in April 1998, and her husband or their attorney was present at all subsequent hearings during which substantive issues were discussed leading up to the council's vote to abandon the street on December 2, 1998. Thus, the Gardners failed to make any "showing of grievance or disadvantage" that a party who has attended the hearing in question must demonstrate "to establish standing to object to the notice" or lack thereof. Graziano, 810 A.2d at 222.
Given these circumstances, the Gardners waived their right to object to the alleged lack of personal service on them of the abandonment order because they and their attorney attended the December 1998 meeting at which the council voted to abandon the street. Consequently, they were aware that the council voted seven to zero to approve the Millers' petition to abandon the unnamed paper street. Because they possessed actual notice of the council's order, the Gardners will not be heard to complain about the town's alleged failure to serve them personally with a copy of the order.
Conclusion
For the foregoing reasons, we deny the Gardners' petition for certiorari, quash the writ as improvidently granted, affirm the town's abandonment order, and return the records to the town with our decision endorsed thereon.
Justice FLAHERTY did not participate.
GOLDBERG, Justice, dissenting.
I respectfully dissent. I am of the opinion that the majority's conclusions in this case are incorrect and that the Gardners were deprived of their right to procedural due process. Because the Gardners enjoyed a constitutionally protected property interest in accessing their land through this public roadway, and the statute under which a municipality is authorized to abandon a street or highway requires that specific procedural guarantees be afforded to the abutters before an abandonment decree is issued, this abandonment order ought not stand.
This Court has declared that lain abandonment of a highway is, by its nature, *982 very similar to an eminent domain proceeding" because the loss of "easement of access from abutting landowners under the sovereign's power of eminent domain" is considered a taking, thus requiring notice to a statutorily defined class of persons and compensation for damages. D'Agostino v. Doorley, 118 R.I. 700, 705, 375 A.2d 948, 950-951 (1977). As with proceedings involving the condemnation of land for public purposes, this Court vigilantly has policed the statutory process that allows such a taking. Id. Although the wisdom and merits of a takings decision are left to the legislative body, the enabling statutes must be strictly followed. Significantly, in Golden Gate Corp. v. Sullivan, 112 R.I. 641, 314 A.2d 152 (1974), we upheld as constitutional a statute authorizing the condemnation of petitioner's land for public purposes that did not provide for a public hearing before the taking. We concluded that the necessity and expediency of taking private land for public use was a legislative question for which a pre-deprivation hearing was not constitutionally mandated. Golden Gate Corp., 112 R.I. at 644, 314 A.2d at 154. Such is not the case with respect to abandonment proceedings because the enabling statute requires actual notice to the abutters, a public hearing and an opportunity to argue against the abandonment and a contemporaneous award of damages.
It is well settled that a property owner's right to access a public street that abuts his or her lot is a valuable property right that cannot "be taken away by closing the highway without payment of just compensation and without due process of law." Wolfe v. City of Providence, 77 R.I. 192, 205, 74 A.2d 843, 850 (1950). Although the process that is due is dictated by the particular circumstances in a given case and the right to a pre-deprivation hearing does not exist in every situation, Barber v. Exeter West Greenwich School Committee, 418 A.2d 13 (R.I.1980), when a statute requires that "before proceeding to abandon any highway or driftway or any part thereof, [every town council] shall give notice to the owners of the lands abutting" the roadway, "to appear * * * and be heard," then an owner's right to procedural due process is set forth in the statute. General Laws 1956 § 24-6-2. (Emphasis added.) This is a mandatory requirement. The General Assembly, in enabling municipalities to abandon a public highway or driftway, "has recognized these [constitutional] limitations on its authority by expressly providing that when a town desires to abandon a public highway it shall first accord to abutters thereon such due process." Wolfe, 77 R.I. at 205, 74 A.2d at 850. Pursuant to § 24-6-2, notice of the proposed abandonment is required so that abutters may appear, "if they see fit, and be heard for or against the abandonment, and as to the damage, if any, which they will sustain * * *." (Emphasis added.) We previously have held that "[i]f abandonment [of a street] is necessary or desirable there is a statutory procedure for accomplishing it[,]" and the limitations on a municipality's authority to deprive an abutter of a valuable property right are clearly and unambiguously set forth in the statute. Wolfe, 77 R.I. at 204-05, 74 A.2d at 850.
Significantly, and in contrast to the eminent domain statutes, "although not constitutionally required to do so, [the Legislature] has provided for prior hearings" in abandonment proceedings, and these "statutory processes must be scrupulously followed in these instances or the actions may be held to be invalid." D'Agostino, 118 R.I. at 706, 375 A.2d at 951. (Emphasis added.) In the case before the Court, the Gardners are not challenging the constitutionality of the statute, nor are they complaining about a lack of procedural protections. *983 Rather, the Gardners have argued, inter alia, that the procedural protections supplied by the statute were ignored by the Town of Cumberland. I agree. In O'Reilly v. Town of Glocester, 621 A.2d 697, 700 (R.I.1993), we declared that "[p]ursuant to § 24-6-2 a town must hold a hearing so that [abutting] landowners may argue against the abandonment and present evidence concerning the damage the landowners will incur if the abandonment proceedings go forward." It is painfully apparent that no meaningful hearing occurred in this case and that the town violated both the statute and its own procedure.
Although, as the majority concludes, the finding by the town council, in accordance with § 24-6-1, that a highway "has ceased to be useful to the public" and title therefore "shall revert to its owner," is a legislative determination that is unreviewable by this Court, the Legislature, in enacting this enabling legislation clearly set forth the procedures that must be followed to accomplish this result. Included in these procedural protections is a requirement for actual notice to an abutter and an opportunity "to appear, if they see fit, and be heard for or against the abandonment, and as to the damage, if any, which they will sustain thereby." Section 24-6-2. Additionally, "whenever it abandons the whole or any part of a public highway or driftway, [the town council] shall at the same time appraise and award the damages." Section 24-6-3. (Emphasis added.) None of that happened in this case.
The hearing procedure that the majority has affirmed, was, in my opinion, a meaningless exercise. The council members who voted to abandon the street did not attend the hearing and never heard from the Gardners. Because a majority of the members of the town council were not present at the public hearing, the Gardners were deprived of their statutorily guaranteed opportunity to be heard. Significantly, the minutes of the town council characterize this procedure as a public hearing and reflect that the witnesses were placed under oath and gave sworn testimony. It is undisputed, however, that this proceeding, held on October 7, 1998, was concluded before the town's biennial elections and that a new town council was elected thereafter. It was the newly elected legislative body that voted in this case, and four of its members, a majority, did not attend the public hearing. One member of the new council, who had sat on the previous council and was initially present for the hearing, absented herself because of illness. Three members were newly elected to the council and were neither present for, nor participated in, the Gardners' only opportunity to be heard. Thus, the suggestion that the council complied with the statutory guarantees of notice and an opportunity to be heard is simply wrong. Although the Gardners were provided with notice, argued against the abandonment and gave evidence about their potential damages, this was an empty exercise because the majority of the members of the town council who voted to abandon the roadway did not hear from them. To reject evidence, a fortiori, a factfinder is required to hear that evidence.
Certainly, the town council could have legitimately rejected the Gardners' arguments against abandonment and lawfully determined that the roadway ceased to be useful to the public. That is precisely what occurred in Godena v. Gobeille, 88 R.I. 121, 143 A.2d 290 (1958), a case relied upon by the majority, in which the Jamestown town council complied with the abandonment procedures set forth in the enabling act and this Court was confronted with a challenge to the wisdom and merits of the legislative determination. We held that certiorari does not lie to review a *984 purely legislative determination because judicial discretion is not employed in rendering the decision. Godena, 88 R.I. at 128, 143 A.2d at 293. That is not the issue before us today.
The fact that the Cumberland town solicitor, when confronted by both the Gardners and the applicants/defendants about this obvious flaw in the legitimacy of the proceeding, asked the members of the council whether they felt comfortable voting on the abandonment petition and received an affirmative response is of no moment to the statutory guarantee of procedural due process. The relative comfort level of newly elected council members who never heard from the Gardners is irrelevant to the issue of due process. We have held previously that abandonment procedures "must be scrupulously followed." D'Agostino, 118 R.I. at 706, 375 A.2d at 951. (Emphasis added.) Moreover, I respectfully reject as unavailing the majority's conclusion that the provision of the Cumberland Code indicating that "four (4) members of the Town Council shall constitute a quorum for the transaction of business" somehow supplies the constitutional processes guaranteed by the statute. The same quorum that heard from the abutters did not vote on the petition. Thus, the only opportunity for the Gardners to appear and be heard about prospective council action that ultimately deprived them of a valuable property right was a nullity.
I further reject the conclusion of the majority that an abandonment solely is a legislative exercise. As noted, valuable and constitutionally protected property interests are at stake and a pre-abandonment hearing, although not constitutionally required, is required by statute. This Court previously has held that "the procedure prescribed by the [abandonment] statute is in part judicial and in part legislative." Godena, 88 R.I. at 127, 143 A.2d at 293. (Emphasis added.) The requirement that the council notify the abutters, afford them an opportunity to argue against the proposal and assess damages, if necessary, is a judicial function, notwithstanding that the ultimate abandonment decision is a legislative act of prospective application. Id.
In Wolfe, 77 R.I. at 203, 74 A.2d at 849, this Court declared that "[i]n this state a municipality may permanently close or abandon a street only after formal proceedings of a semijudic[i]al nature in accordance with [law.]" That is, a proceeding that "is in part judicial and in part legislative." Godena, 88 R.I. at 127, 143 A.2d at 293; See Frank W. Coy Real Estate Co. v. Pendleton, 45 R.I. 477, 123 A. 562 (1924) (abandonment petitions involve semijudical proceedings to be undertaken by the town council). In Wolfe, supra, we were confronted with a statute that authorized the City of Providence to enact a traffic ordinance that permanently closed a city street to vehicular traffic and severely restricted access to plaintiff's premises. We concluded that this was not a legitimate traffic regulation within a municipality's police power but amounted to an abandonment of the roadway. We concluded that the Legislature may not authorize cities and towns to permanently prohibit vehicular traffic on a street or highway unless it is accomplished through the statutorily prescribed abandonment procedures. "An abutter's right in the street is a property right and cannot unreasonably be interfered with * * * taken away * * * without payment of just compensation and without due process of law." Wolfe, 77 R.I. at 205, 74 A.2d at 850. Accordingly, "when a town desires to abandon a public highway it shall first accord to abutters thereon such due process." Id. (Emphasis added.)
*985 Finally, in contravention of § 24-6-3, the town council failed to assess damages and, in violation of § 24-6-1 and its own resolution, the town council failed to provide the Gardners with personal notice of the abandonment decree. I reject the majority's opinion that the town's failure to comply with its own resolution "is of no legal consequence in this case" because, the majority concludes, the Gardners, having attended the meeting, "are deemed to know that this event occurred, thereby satisfying the notification purpose for requiring personal service of the order." According to the statute, the "event" is not concluded by the vote of the council; the Gardners were entitled to know the particulars, including a decision on damages, none of which occurred during this unorthodox proceeding. I am not prepared to overlook the statutory mandate of notice that was included in the council's own order. According to the record provided to this Court, the resolution of abandonment filed in the land evidence records of the town, although allegedly voted upon on December 2, 1998, is dated and attested to by the town clerk as having been enacted on June 3, 1998, six months earlier. How a resolution of the town council can be signed and attested to by the clerk six months before the actual vote of the council is simply inexplicable. Moreover, according to § 24-6-4, anyone aggrieved by the order or decree awarding damages may, "within one year after the making of the award[,]" petition the superior court for a jury determination of damages against the town. At what point does the one-year time limitation begin to run? As noted in O'Reilly, 621 A.2d at 700, the purpose of notice is to inform the public that the town has terminated its obligation to maintain the right-of-way and that title to the land on which the right-of-way sits has reverted to the owners of the property adjacent to the right-of-way. Further, the abutters are entitled "to an assessment of damages once a town officially abandons its obligation to maintain a right-of-way." Id. (Emphasis added.) In light of the town council's statutory obligation to personally serve an abutting landowner with notice of the abandonment, the council's own resolution ordering notice and the fact that the one-year limitations period to claim a jury trial begins to run as of the date of the decree, I deem these procedural deficiencies to be equally fatal to the validity of the abandonment.
In conclusion, at best, this case represents sloppy and uninformed practices by a newly elected town council. Consequently, I dissent. For the reasons set forth herein, I would grant the petition for certiorari and quash the abandonment decree.
NOTES
[1]  Although the council's resolution of abandonment was dated June 3, 1998, the council did not vote to adopt the resolution until December 2, 1998, when it did so unanimously by a seven-to-zero vote. Thus, December 2, 1998, is the date indicated in typed print at the bottom portion of the resolution.
[2]  General Laws 1956 § 24-6-1 provides, in pertinent part:

"Order of abandonment-Reversion of title-Notice.
(a) Whenever, by the judgment of the town council of any town, a highway or driftway in the town, or any part of either, has ceased to be useful to the public the town council of the town is authorized so to declare it by an order or decree which shall be final and conclusive; and thereupon the title of the land upon which the highway or driftway or part thereof existed shall revert to its owner, and the town shall be no longer liable to repair the highway or driftway; provided, however, that the town council shall cause a sign to be placed at each end of the highway or driftway, having thereon the words Not a public highway', and after the entry of the order or decree shall also cause notice thereof to be published in a newspaper of general circulation * * * and a further and personal notice shall be served upon every owner of land abutting upon that part of the highway or driftway which has been abandoned who is known to reside within this state * * *."
[3]  Given that the Gardners failed to present any evidence or testimony to the council about any damages they allegedly would suffer as a consequence of the street's abandonment, it is hardly surprising that the council did not award them any damages. In any event, the Gardners had up to one year after the council's adoption of the resolution to petition the Superior Court for a jury trial on damages, even though the council failed to award them any damages related to the abandonment. Thus, § 24-6-4 provides, in pertinent part:

"Any person aggrieved by the order or decree of a town council awarding damages on the abandoning of a highway or driftway, or any part thereof, may within one year after the making of the award apply by petition to the superior court * * * setting forth the action of the town council and praying for an assessment of his or her damages against the town by a jury." (Emphasis added.)
Thus, with respect to any disagreement on the Gardners' part concerning the failure of the council to award them damages, the Gardners' remedy lay in the Superior Court, not with this Court via a petition for certiorari.
[4]  The dissent concludes that even though "the Gardners were provided with notice, argued against the abandonment and gave evidence about their potential damages, this was an empty exercise because the majority of the members of the town council who voted to abandon the roadway did not hear from them. To reject evidence, a fortiori a fact-finder is required to hear that evidence." The problem we have with this analysis is that the council, in its capacity as a legislative body, was not acting as a judicial fact-finder in deciding to abandon the street, but as a policymaker. Thus, it was not required to consider any particular evidence to make that decision, only to decide what, in its legislative judgment, was in the best interest of the town and whether, in its legislative judgment, the street had ceased to be useful to the public. Only with respect to the assessment of damages (or lack thereof)which the Gardners do not challenge or complain aboutwas the council acting in a quasi-judicial capacity and, therefore, subject to the heightened procedural requirements of individualized due process. In any event, to the extent the Gardners were aggrieved by that aspect of the council's action, their remedy was to petition the Superior Court "praying for an assessment of [their] damages," as stated in § 24-6-4, but not to petition this Court for certiorari.


774 F.2d 1149
DiLorenzov.Commonwealth Mortg. Co., Inc.
85-1259
United States Court of Appeals,First Circuit.
9/4/85

1
D.R.I.

VACATED AND REMANDED