Byfield v. City of Newton

• Decision Date: 30 November 1923
• Citation: 141 N.E. 658,247 Mass. 46
• Parties: BYFIELD v. CITY OF NEWTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 46

141 N.E. 658

BYFIELD

v.CITY OF NEWTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 30, 1923.

Exceptions from Supreme Judicial Court, Middlesex County.

Petition by Cecilia A. Byfield for a writ of certiorari to quash proceedings of the Board of Aldermen of the City of Newton in adopting and causing to be recorded an order purporting to take by eminent domain land of the petitioner and other owners. The petition was dismissed and the petitioner brings exceptions. Exceptions overruled.

The communication of the school committee to the board of aldermen was as follows:

‘Gentlemen: The school committee, having recently communicated its opinion that a new building suitable for a junior high school is needed in the vicinity of Washington and Greenough streets, West Newton, now respectfully communicates to the honorable board of aldermen its further opinion that new schoolhouses and material alterations are needed as follows:

‘A 12 or 14 room building is required at the location of and to replace the present Davis School in West Newton.

‘A 12-room building is required at the location of and to replace the present Eliot School at Nonantum.

‘A 16-room building is required at the location of and to replace the present Underwood School at Newton.

‘Material alterations are needed at the Bigelow School in Newton to convert the building so as to make it suitable for use as a junior high school.

‘This present request may be considered in its entirety as an alternative for the request above mentioned for a junior high school at Washington and Greenough streets. It is the opinion of the school committee that the immediate needs of the city require the execution of one or the other of these plans; and this alternative request is made only upon condition that if the Washington and Greenough street junior high school be not immediately provided, the whole of said alternative plan should be executed as soon as may be, and in particular be executed with sufficient promptness so that the conversion of the Bigelow School to junior high school uses shall be completed by the first of September, 1923.’R. Adair, of Wilmington, Del., for petitioner.

J. W. Bartlett, of Boston, for respondents.

RUGG, C. J.

This is a petition for a writ of certiorari to quash proceedings of the board of aldermen of Newton in adopting and causing to be recorded an order purporting to take by eminent domain land of the petitioner and of other owners.

[1] The city of Newton is joined improperly as a party defendant.

‘A writ of cetiorari (when not used as ancillary to any other process) is in the nature of a writ of error, addressed to an inferior court or tribunal whose procedure is not according to the course of the common law.’ Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 212.

[2] The respondents filed what is entitled an answer. There appears to be included in it a return of all the official doings of the board of aldermen touching the matters alleged in the petition. Instead of answering, the board of aldermen ought to have filed a return stating their proceedings. Lowell v. County Commissioners, 146 Mass. 403, 412, 16 N. E. 8;Haven v. County Commissioners, 155 Mass. 467, 469, 29 N. E. 1083;Commissioner of Public Works v. Judge Dorchester District Court, 228 Mass. 12, 17, 116 N. E. 969. The answer in substance and effect is a sufficient return.

The return ought to have been signed by all members of the board, and not by some of them alone nor by an attorney. Plymouth v. County Commissioners, 16 Gray, 341;Worcester & Nashua Railroad v. Railroad Commissioners, 118 Mass. 561, 564;Chase v. Aldermen of Springfield, 119 Mass. 556, 562. A return of their entire doings in the premises, when signed by the members of the board, is presumed to be under their official oaths without further affidavit. Collins v. Holyoke, 146 Mass. 298, 306, 15 N. E. 908.

[5] The circumstance that it was not so signed and the other informalities of procedure are not fatal to the rights of the respondents nor decisive in favor of the petitioner. These all were defects of form which were waived by the petitioner by going to a hearing on the merits. No advantage now can be taken of them. Shour v. Henin, 240 Mass. 240, 243, 133 N. E. 561;Maker v. Bouthier, 242 Mass. 20, 23, 24, 136 N. E. 255;Bauer v. International Waste Co., 201 Mass. 197, 201, 87 N. E. 637.

[6][7] The answer set forth in detail all the doings of the board of aldermen concerning the taking of the land in question. This return was conclusive as to all matters of fact within their jurisdiction and passed on by the board of aldermen. It was not open to contradiction in any respect by the petitioner. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 214;Ward v. Newton, 181 Mass. 432, 63 N. E. 1064;Janvrin v. Poole, 181 Mass. 463, 465, 63 N. E. 1066;New York Central & Hudson River Railroad v. County Commissioners, 220 Mass. 569, 573, 108 N. E. 506. It is manifest from this record that the taking was made for use as a lot for a schoolhouse. That is a municipal purpose beyond all question, for which under our statutes the power of eminent domain may be exercised by the board of aldermen of a city. R. L. c. 25, § 47; St. 1918, c. 291, § 8; G. L. c. 40, § 14; Reed v. Acton, 117 Mass. 384;Leonard v. School Committee of Springfield, 241 Mass. 325, 135 N. E. 459.

[8] Beside setting forth the doings of the board of aldermen, their return alleged extrinsic facts to show that substantial justice did not require that the proceedings be quashed. This was permissible and proper practice. Tewksbury v. County Commissioners, 117 Mass. 563, 566;Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42, 43. Facts stated in the return are in substance that the order for taking was passed by the board of aldermen on the 6th day of November, 1922, and recorded in the registry of deeds on the 16th of the same month, and that notice thereof together with the amount of compensation awarded her was sent to the petitioner on the 24th of the same month, and that on the 20th of the same month the petitioner sent through her attorney a communication, dated seven days earlier, respecting the alleged taking. It is set forth in the answer that, after appropriation duly made, contracts for the erection of a school building partly to be located on land of the petitioner have been entered into with builders and materialmen at a cost of $290,000, and that the construction of such building was commenced shortly after the 1st of March, 1923; that the petitioner has been guided constantly by the advice of an attorney since some time in November, 1922, who has lived in the house on the land now in question, and that she has deliberately refrained from bringing this proceeding during the period since her right to do so accrued until April 24, 1923, all for the purpose and with the intent of embarrassing and obstructing the city in the construction of the building and of obtaining grossly excessive damages which have been demanded.

[9] If these facts were disputed, as to some of them evidence might have been admissible. If not controverted, the hearing rightly may have proceeded on the footing that they were true. Dickinson v. Worcester, 138 Mass. 555;Collins v. Holyoke, 146 Mass. 298, 305, 15 N. E. 908.

[10] The case comes before us on a bill of exceptions, which does not contain any recital of evidence. It does not state whether any evidence was in fact introduced. It states merely that the petitioner requested nine rulings of law, all of which were denied, and that the petition was dismissed, ‘to which denial and dismissal the petitioner duly claimed exceptions.’ The case must be considered on the footing that facts set forth in the answer or return, so far as pertinent, were accepted as true or found to be true by the single justice.

[11] There was no failure on the part of the school committee of Newton to submit a written communication to the board of aldermen stating the locality and nature of further provision for schools as required by the city charter. St. 1897, c. 283, § 23. The record shows substantial compliance with the statute in this particular. Simpson v. Marlborough, 236 Mass. 210, 127 N. E. 887.

[12] It is not necessary to inquire whether there was conformity to all the terms of rules and orders of the board of aldermen in referring the request of the school committee to appropriate committees or boards and receiving reports thereon as preliminary to the adoption of the order of taking. These objections need not be examined in detail.

‘It is within the power of all deliberative bodies to abolish, modify or waive their own rules, intended as security against hasty or inconsiderate action.’ Holt v. City Council of Somerville, 127 Mass. 408, 411;Wheelock v. Lowell, 196 Mass. 220, 230, 81 N. E. 977,124 Am. St. Rep. 543,12 Ann. Cas. 110;Pevey v. Aylwood, 205 Mass. 102, 107, 91 N. E. 315.

[13][14] The order of taking was not rendered invalid because bearing a superfluous signature. The copy of the order of taking adopted by the board of aldermen was certified by the city clerk (who is by St. 1897, c. 283, § 9, the clerk of the board of aldermen) and filed in the Registry of Deeds. That was correct. G. L. c. 79, § 3.

[15] The circumstance that the notice sent to the petitioner stated the date of filing the copy of the taking as November 15, 1922, when the true date was November 16, 1922, does not require the granting of the writ. It is expressly provided by G. L. c. 79, § 9, that failure to give the notice shall not affect the validity of the proceedings. Manifestly a mistake of one day under the circumstances here disclosed is of slight consequence. Sears v. Worcester, 180 Mass. 288, 62 N. E. 269.

[16] It is not necessary to examine the substance of the notice with nicety. It shows no substantial error. Defective notices under G. L. c. 79, § 9, commonly...