Bowditch v. Superintendent of Streets of City of Boston

• Decision Date: 14 May 1897
• Citation: Bowditch v. Superintendent of Streets of City of Boston, 168 Mass. 239, 46 N.E. 1026 (Mass. 1897)
• Parties: BOWDITCH et al. v. SUPERINTENDENT OF STREETS OF CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 239

46 N.E. 1026

BOWDITCH et al. v. SUPERINTENDENT OF STREETS OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 14, 1897

COUNSEL

H.L. Harding, for petitioners.

T.M Babson, for respondent.

OPINION

MORTON J.

This is a petition for a writ of certiorari to quash certain sewer assessments made by the respondent, as superintendent of streets of the city of Boston, on estates of the petitioners abutting on the street in which the sewer was built.

The first question is whether certiorari lies.The respondent contends that it does not, because--First, he is an executive officer, performing a purely ministerial duty in levying the assessments; and, secondly, if that is not so, because the remedy is by petition for abatement.The assessments are made by virtue of the provisions of St.1892, c. 402.By section 1 of that act the mayor and aldermen may order the superintendent of streets to make sewers, and he is bound to carry out the orders thus passed.By sections 2and3 the expenses of the work so ordered are to be assessed, to an amount not exceeding four dollars per lineal foot of sewer on the parcels of land bounding on the highway or strip of land in which the sewer is built, and the superintendent of streets is directed to apportion this assessable cost among these parcels in a manner therein provided.In other words he is to determine what the assessable cost is, and then to apportion it among certain estates; and we think that in doing this he acts judicially, and that, therefore, certiorari will lie to correct any errors of law affecting the assessment.Attorney General v. Mayor, etc., of Northampton,143 Mass. 589, 10 N.E. 450;Snow v. City of Fitchburg,136 Mass. 179.Of the remedy by abatement, it is to be said that this is not a case in which the aggrieved parties are seeking relief on the ground that the assessments are too large, or that their estates have been overvalued, or for any other like reason.They contend, on the contrary, that the assessments are wholly invalid, by reason of the failure of the superintendent of streets to comply with certain statutory or other requirements whose observance, they insist, was essential to a valid assessment.In such a case it is plain that certiorari is a proper remedy.Snow v. City of Fitchburg, supra;Taber v. City of New Bedford,135 Mass. 162;Kelso v. City of Boston,120 Mass. 297;Butler v. City of Worcester,112 Mass. 541, 556.It is not contended, and we think that it could not be successfully, that certiorari will not lie because the assessment, if paid, might be recovered back in an action at law.Barnard v. Fitch, 7 Metc.(Mass.) 605.

We come then to the question of the validity of the assessments.In considering this question, any facts stated by the respondent in his return or answer, and relied on by him, are to be taken as true, so far as material, and, unless it appears that substantial justice requires that the writ should issue, the petition should be dismissed; otherwise it should be granted.Slocum v. Selectmen of Brookline,163 Mass. 23, 25, 39 N.E. 351;Dickinson v. City Council,138 Mass. 555, 560;Farmington River Water-Power Co. v. County Com'rs,112 Mass. 206, 212.If the assessments were wholly invalid, it is obvious that justice would require that they should be quashed.So much of the answer or return as recites the action of the so-called citizens' relief committee was not relied on at the hearing before the single justice, nor at the argument in this court, and we therefore treat it as waived.

The petitioners contend that the assessments are invalid because the superintendent of streets did not observe the requirements of the order of the mayor and aldermen in regard to the construction of the sewer, and because he did not comply with the provisions of certain statutes and of the ordinances of the city of Boston(St.1885, c. 266, § 6;St.1890, c. 418, §§ 4, 6;St.1891, c. 323, § 13;Rev.Ord.1892, c. 36, § 7), which they insist were in the nature of conditions precedent to the construction of the sewer, whose nonobservance vitiated the assessments.It is contended that the order of the mayor and aldermen was violated because the sewer was built in part of 24-inch pipe, and not wholly of 15-inch and 12-inch pipe, as, it is insisted, the order directed.Whether this point is well taken depends on the construction to be given to the order.The order required the superintendent of streets "to make a sewer in Pond St., ward 23, between May and Avon streets; said sewer to be of 15-inch and 12-inch earthen pipe, and located as shown on a plan on file in the office of superintendent of streets, marked 'Pond Street, West Roxbury,' and dated November, 1893."The reference to the plan, we think, is not merely for the purpose of showing the location, but for the purpose of showing other details as well.The plan, by the terms of the order, is made a part of it, and the order is to be construed as if it read, "And located all as shown," etc.The plan and the order cannot be separated, but must be taken together.And the rule would seem to be, not that one should override or control the other, except, perhaps, in the case of a palpable clerical mistake, but that, if there are any inaccuracies or omissions in one, they should be corrected or supplied by reference to the other, in order to arrive, if possible, at a correct description of the sewer which the mayor and aldermen had directed to be built.Gilkey v. Watertown,141 Mass. 317, 5 N.E. 152;Grand Junction R. Co. v. County Com'rs,14 Gray, 553;Inhabitants of Andover v. County Com'rs of Essex, 5 Gray, 393.According to the plan, the portions to be built of 15-inch and 12-inch pipe did not include the whole sewer, but a portion was to be built of 24-inch pipe.The order did not undertake to describe the sewer fully, but left some matters to be determined by reference to the plan; and, while the order only speaks of 12-inch and 15-inch pipe, we think that it is evident that, taking the order and plan together, a portion of the sewer was to be built of 24-inch pipe, and that there was therefore no error on the part of the superintendent of streets in building it, or failure to comply with the order of the mayor and aldermen.

The petitioners further contend that the estimated cost of the sewer exceeded $2,000, and that the superintendent should have invited, by advertisement, proposals for its construction, as provided by statute and ordinance, and especially by section 4, c. 418, Acts 1890, and that the contract which was made should have been...