The
answer of the respondents admitted that the mayor and
aldermen ordered the sewer to be built, and that the
petitioner was not an abutter on said Lyman street, or on the
line of said sewer, "in the sense that the land of the
petitioner does not adjoin said Lyman street, and is not
directly on the line of the sewer; but the said assessment is
not affected thereby." The remainder of the answer was
as follows: "The respondents admit that no notice was
given the petitioner of the intention to construct the sewer
and say that the mayor and aldermen were under no obligation
to give such notice, and that their failure to give it in no
way affects the validity of the assessment. The respondents
say that at the meeting of December 29, 1885, the assessment
was made, as alleged in the petition, to abutters, but that
the using of the word 'abutters' was an error made by
the clerk, and the said clerk has amended his records in that
respect; and they say that the use of the word
'abutters' did not affect the validity of the
assessment. The respondents admit that said copies represent
all the votes of said board of aldermen relating to said
sewer. The respondents admit that said sewer has been
constructed; that it is a common or trunk sewer; that a
warrant has been issued, as alleged in the petition; that the
petitioner is assessed for the sum alleged in the petition
that a demand has been made for said sum; that said premises
have been advertised for sale; that notice of the sale was
published, and the time fixed, and postponement made, as
alleged in the petition. The respondents admit that there is
no record of the board of aldermen that the superintendent of
sewers kept an account of the cost of constructing said
sewer, or other expenses in relation thereto
and that said superintendent did not report to the board a
list of persons and estates deriving benefit from said sewer
but they say that the failure of the superintendent to make
such report, and the fact that there is no such record of the
board of aldermen, do not affect the validity of the
assessment. The respondents deny that there is no record of
the board of aldermen that the petitioner was assessed
$51.84, and they say that there is such record. The
respondents neither admit nor deny, being a matter not within
their knowledge, that a person not a member of the board of
aldermen, and other than said superintendent of sewers, and
not a member of the city council of said Holyoke, made a list
of persons which he claimed ought to be assessed, and for the
amounts for which they ought to be assessed set opposite
their respective names, on which list was the name of the
petitioner, and opposite his name said sum, and that said
list and amounts were the only basis for the said demand,
warrant, and notice of sale; but they say that, if the
allegation in respect to said person be true, the validity of
the assessment is not in any way affected thereby. The
respondents neither admit nor deny, as a matter within their
knowledge, the allegation in the petition that said sewer was
built under the supervision and direction of a joint
committee, composed of four members of the common council and
three aldermen; and they say that, if the said allegation be
true, the validity of the assessment is not affected thereby.
The respondents deny that various persons owning land
situated, with respect to said sewer, similarly to the land
of the petitioner, and deriving as much benefit therefrom,
were not assessed, as alleged in the petition. The
respondents deny that persons owning land on Lyman street,
and on the line of said sewer, were not assessed, or required
to pay, for any portion of the expense of the construction of
the said sewer; and they say that all such persons were
assessed." The respondents, in answer to the formal
divisions of petitioner's objections, made substantially
the same answers as stated in the above quoted part of their
answer, and averred that the records did show what was the
actual expense of the construction of the sewer, and that the
assessmeut was valid. To the answer, which was signed by the
mayor and members of the board of aldermen, was appended the
following affidavit: "[After naming the state, county,
and date.] Personally appeared before me the above-named
James J. O'Connor, William H. Jess, John Dillon, James F.
Cleary, W.E. Symes, John Hildreth, Henry Winkler, and James
W. Toole, who do depose, make oath, and say that they are the
respondents named in the foregoing answers, and the
amendments thereto, subscribed by them, and they know the
contents thereof; that those allegations in said answers and
amendments which relate to the matter of the records of the
board of mayor and aldermen, and to said warrant or order,
they know of their own knowledge to be true; that any of them
were not members of the board of mayor and aldermen of the
year 1885, who made the assessment in question, and they do
not know of their own knowledge that the other matters and
things stated in said answers and amendments are true, but
upon information and belief they believe them to be true.
Before me, T.B. O'DONNELL, Justice of the Peace."
The respondents, in answer to petitioner's amendment, set
forth "that the petitioner cannot object in this
proceeding that he or his said estate received no benefit
from said sewer; and they say that, if he can so object, he
and his said estate did receive benefit from said sewer. And
the respondents say, in answer to the second objection in the
amendment, that the board of aldermen did fix the time when
the proportions of the assessments should be paid." This
was signed by the mayor and board of aldermen. The first
amended answer of the respondents admitted that the copy of
the vote of the board of aldermen relative to constructing
the sewer was correct; but averred that the copy of the vote
making the assessment was not correct, but that the vote was
as follows: "Assessments on the abutters for the
construction of sidewalks, also assessments to
defray in part the expense of constructing certain sewers,
were levied as follows, and signed by the mayor and aldermen,
viz.: Trunk sewer in Lyman street, from Race street to Canal
street, total, $6,630.86." The remainder of the first
amended answer was as follows: "And the respondents say
that an order or warrant for the collection of two-thirds of
the cost of said sewer, as provided by the ordinances of said
city, signed by the mayor and aldermen, and in a list annexed
to the same by the said mayor and aldermen, an apportionment
of the cost of said sewer was made by the mayor and aldermen
to the parties benefited thereby, and the said two-thirds
assessed to said parties, in which list the petitioner was
charged and assessed for said sum of $51.84, and said warrant
and list were given by the said mayor and aldermen to the
treasurer of said city for the collection of said sums, as
provided by the ordinances of said city relating to sewers;
*** and the treasurer duly demanded said sum from the
petitioner, and he neglected and refused to pay the same. And
the respondents say that in said list the assessments were
divided into three classes, which were called 'direct
benefit,' 'remote benefit,' and 'more remote
benefit,' and that the petitioner was assessed in the
third class. And the respondents move to amend their answer
in relation to the allegation in the petition 'that there
is no record that said board of aldermen ever assessed your
petitioner the aforesaid sum of $51.84, or any other sum, as
his portion of the expense of said sewer,' by adding
thereto the following: 'And said assessment of $51.84 is
made in the list annexed to the said warrant.' And the
respondents ask leave to substitute for the following
paragraph in the answer, to-wit: 'The respondents neither
admit nor deny, as a matter not within their knowledge, that
a person not a member of the board of aldermen, and other
than said superintendent of sewers, and not a member of the
city council of said city, made a list of persons,' etc.,
the following: 'And the respondents admit that the mayor
and board of aldermen employed one J.F. Sullivan, chairman of
the board of assessors of said city, and not any of the
officers mentioned in the petition, on account of his large
experience in assessing, to aid and assist them in making
said assessments, by furnishing them with a list of the names
of the persons whom he thought ought to be assessed, and the
amount for which he thought they ought to be assessed. They
deny that said list and amounts so made were the only basis
of said warrant, demand, and notice; and they say that the
superintendent of sewers furnished them with the cost of said
sewers, by which they were enabled to make said
assessments.' " The above amendments were also made
to the answers to the formal divisions of petitioner's
objections, and the whole was signed by the mayor and members
of the board of aldermen. A second amended answer set forth
that the following notice and demand was sent by mail,
properly directed to the petitioner by the treasurer of said
city, on February 1, 1886:
"CITY
OF HOLYOKE, TREASURER'S OFFICE, -------, 1886.
"George
W. Collins--SIR: A tax has been assessed on you by the city
of Holyoke to defray the expense in part of constructing a
main drain or common sewer in Lyman street, from Race street
to Canal street, of $51.84. You are hereby requested to make
immediate payment of the same to
"Yours,
very respectfully, OSCAR ELY, Treas.
"If
not paid within thirty days, interest will be charged
thereafter. See Statutes, 1884."
The
case was heard in the supreme judicial court by W. ALLEN, J
on...
