Brown v. Mayor & Aldermen of Fitchburg
| Decision Date | 25 February 1880 |
| Citation | 128 Mass. 282 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Charles H. Brown & others v. Mayor & Aldermen of Fitchburg |
Writ of certiorari to issue.
W. S B. Hopkins & E. P. Loring, for the petitioners.
F. P Goulding & H. C. Hartwell, for the respondents.
OPINION
The petitioners ask for a writ of certiorari in order that the record of the mayor and aldermen of the city of Fitchburg in the matter of the assessment of the cost of a sewer in Willow and Green Streets in that city may be quashed. Numerous errors are alleged as reasons why the writ should issue. It is unnecessary for us to pass upon them all. We are satisfied that, whether that part of the sewer which is in Green Street was legally established or not, the assessment was illegal. In making it, a substantial amount, being part of the cost of what is termed by the respondents the outlet of the sewer, was included as a part of the cost of the Willow and Green Street sewer. This outlet was constructed by the selectmen of the town of Fitchburg, and accepted by the town in the year 1872, at a cost, including the land damages, of more than $ 15,000. The respondents contend that it was constructed as a part of a system of sewers adopted by the town of Fitchburg in 1869, and as the common outlet for all sewers which should thereafter be constructed within certain limits known as the Willow Street District; and that, therefore, a proportional part of its cost was properly included in the assessment to pay for the Willow and Green Street sewer, which lies within those limits.
In determining the question, it is unnecessary to consider whether the town of Fitchburg had authority in 1869 to adopt a plan for a comprehensive system of sewers, which should be constructed one after another at greater or less intervals of time, and requiring several years for the completion of the system; because, in the absence of special legislation governing the case, any assessment for paying the cost of any sewer, constructed by either the town or the city, could be legally made only in accordance with the provisions of the Gen. Sts. c. 48, as extended and modified by the St of 1869, c. 111. If, therefore, the town or city wished to assess the persons whose estates were in any way benefited, within the meaning of the statutes, by the construction of the sewer leading...
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