Attorney General v. City of Boston

• Decision Date: 01 July 1886
• Citation: 7 N.E. 722,142 Mass. 200
• Parties: ATTORNEY GENERAL, by Information v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 200

7 N.E. 722

ATTORNEY GENERAL, by Information v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 1886

COUNSEL

Hale & Walcott, for plaintiff.

A.J Bailey, for defendant.

OPINION

DEVENS J.

St.1799 c. 31, § 1, (2 Mass.Sp.Laws, p. 338,) provided that all streets in the city of Boston shall be paved "agreeable to the following regulations, viz., that the foot path or walk on each side of every street shall be of the breadth of one-sixth part of the width of the whole street, and shall be laid or paved with bricks or flat stone, and secured with a beam or cut stone along the outside thereof, and the middle or remaining four-sixths, of every street shall remain as a passage-way for carriages of burden or pleasure." In certain cases it was provided that "the breadth of the foot-walk, and the ascent and descent and the curving of every pavement, shall be regulated by the surveyors of highways." This statute the informant claims to be still in force, and contends that there exists no power in the city government, or any of its branches, to cause the entire and permanent removal of a sidewalk on any paved street in the city of Boston.

The act of 1799 does not in terms provide that every paved street shall have a sidewalk or foot-path on each side thereof, but it does assume by these regulations that it will; and the second section of the act provides that, when the cart-way in any street is ordered to be paved, the owner of any abutting lot "shall, without delay and at his own cost, cause the foot-way in front of his ground to be paved with brick or flat stones, and supported by timber or hewn stones, and kept in repair; the same to be done under direction of and to the approbation of the surveyors of highways." In case such owner neglects to pave his foot-way, the surveyors are authorized to do it, and to recover of him the amount thus expended.

St.1831, c. 17, treats the statute of 1799 as in force, and recognizes the second section thereof as its principal object, by imposing upon the abutters, upon macadamized streets in the city of Boston, the same liabilities as would be created under the act of 1799, and the acts in addition thereto, by the paving of the street.

St.1833, c. 128, provides that the city council of Boston "may, by any ordinance or ordinances, empower the surveyors of highways so to regulate the width and height of sidewalks *** as shall, in the judgment of said surveyors, be most conducive to the convenience and interest of said city, any law of the commonwealth to the contrary notwithstanding." It further provides that the city council may "empower said surveyors to accept said sidewalks after the same shall be put in good and perfect repair, *** and *** relinquished to said city, *** and *** order that after such relinquishment such sidewalks may be maintained at the expense of said city." The power of regulating the width and height of the sidewalks is given as a part of the power of accepting the same for the city when put by the abutter in good and perfect repair, and, when also relinquished to the city, thenceforth they may be maintained at its expense. The act does not make it the duty of the city through the surveyors to accept the sidewalk prepared by the abutter on his relinquishment of it, nor does it compel the relinquishment of the abutter. Its object was to place within the control of the city the whole subject, and, under it, if it was not deemed necessary that any sidewalk should be constructed, it was not obliged to accept one, and impose the burden upon the city. While the word "regulate," as applied to the sidewalks, may often imply the existence of the thing to be regulated, the use of the streets of a city implies the power to prohibit the use of them under certain circumstances. Com. v. Stodder, 2 Cush. 562, 571; Union Ry. Co. v. Cambridge, 11 Allen, 287, 294.

If the validity of the order here in question depended alone on these three statutes cited, it may be doubted whether it could be held that they rendered it obligatory on the city whenever a way was paved or macadamized, to provide it with sidewalks...