Dunn v. Crossman

• Decision Date: 25 November 1908
• Citation: 200 Mass. 252,86 N.E. 313
• Parties: DUNN et al. v. CROSSMAN, Mayor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 252

86 N.E. 313

DUNN et al. v. CROSSMAN, Mayor.

Supreme Judicial Court of Massachusetts, Bristol.

November 25, 1908

COUNSEL

John

B Tracy and William E. Kelley, for petitioners.

H. F Hathaway, for respondent.

OPINION

SHELDON J.

This is a petition for a writ of certiorari to quash the proceedings of the respondent as mayor of the city of Taunton in removing the petitioners from their offices as members of the board of sewer commissioners of that city. At a hearing before a single justice of this court upon the petition and answer and the exhibits attached thereto, the petition was dismissed; and the case comes before us by an appeal from this order.

The respondent, at a hearing upon certain charges preferred by him against the petitioners as a ground for their removal, found that the first of these charges was proved. This charge was that the petitioners had neglected to take any action in the matter of sewer assessments, as provided by St. 1904, p. 336, c. 384, § 3. That section reads as follows: 'The sewer commissioners of said city shall assess the owners of lands hereinafter described within the territory embraced by said system of sewers, by a fixed uniform rate based upon the estimated average cost of all the sewers of said system. In making such estimate and for all purposes under this act, the cost of sewers in said territory which were built prior to the adoption of said system, but which have been made or are to be made a part thereof, shall be taken to be their cost, after a reasonable deduction for depreciation, if any, on account of age and use has been made. Such assessments shall be made as aforesaid on the lands in said territory on every street or way in which the trunk sewer of said system is constructed, or in which there is a common sewer, directly or indirectly connected with said trunk sewer, whether such sewer was built prior or subsequent to the fourteenth day of August, eighteen hundred and ninety-seven, and shall be made according to the frontage of such lands on such street or way, and according to the area of such lands within a fixed depth from such street or way; but no assessment in respect to any such land which, by reason of its grade or level or any other cause, cannot be drained into such sewer, shall be made until such incapacity is removed; and in cases of corner lots and lots abutting on more than one sewered street or way, the same area shall not be assessed more than once. The lien hereinafter provided for shall attach to the parcel assessed. If payment has been made of any prior assessment or charge imposed in respect to any such land on account of any common sewer of said system, an allowance shall be made for such payment, and the owner shall be assessed for the remainder only. Said sewer commissioners shall certify all assessments made under this section to the collector of taxes of said city for collection. After receiving an assessment list, the collector shall forthwith send notice to each person assessed of the amount of his assessment, in like manner as notices of taxes are sent.' The findings and rulings of the mayor as to this charge, as set out at length in the record, are as follows:

'The board of sewer commissioners is a board consisting of three members. William E. Bellamy and the respondents, William B. Granfield and James P. Dunn, were appointed members and took office on the first Monday in February, 1907, for the term of one, two, and three years, respectively. Bellamy served until the expiration of his term, January 31, 1908, and Granfield and Dunn remain in office. It appeared from the records of the board of sewer commissioners and from other competent evidence that no sewer assessments have ever been made as required by St. 1904, p. 336, c. 384, § 3, and that from the time the members of the board went into office on the first Monday in February, 1907, to the time of the hearing before me, no steps were taken by such members towards making assessments under the law cited. The statute of 1904 referred to was duly accepted by the city council of Taunton July 21, 1904. There are about 25 miles of sewers in Taunton, of which about 24 miles consist of the trunk sewer and of laterals directly or indirectly connected therewith. The 24 miles of sewers are part of the system of sewers legally adopted by the city and referred to in the law cited. By the mandatory requirement of section 3 of this law, the sewer commissioners are bound to assess, in the manner specified, the owners of lands on every street or way in which such sewers are located. The statute went into effect over four years ago. The respondents have been in office for more than a year. Prior to their taking office the cost of all the sewers of the system has [had] been determined, a fixed uniform rate for assessments had been established by competent experts, and all these things were matter of record. The necessary data for proceeding at once to make assessments as required by the statute referred to, on abutters on the 24 miles of sewers above described, were on file in the office of the sewer commissioners; but, as I find on the evidence, the respondents have negligently omitted to make, or to take any steps towards making, such assessments, I accordingly find that the first charge is sustained.

'On the question whether the neglect of the respondents thus found to comply with the requirements of the law referred to is sufficient cause to justify their removal from office, the circumstances are to be considered. The law which it is the duty of the respondents to obey, but which they have persistently disregarded, is entirely plain, and it was in evidence that their attention was called to it and to the necessity of proceeding under it when they first took office. No valid excuse for their negligence has been offered by them, and none appears. They did not themselves testify at the hearing, but called Mr. Bellamy, their former associate, as a witness in their behalf. From a stipulation entered into at the hearing that if called they themselves would testify as Mr. Bellamy had testified, and from the argument of their counsel, the position which they take admits of no doubt. They give no intimation that if permitted to remain in office they will comply with the requirements of the law. On the contrary, they contend that they are the exclusive judges as to when, if at all, they shall take action under it, and, in support of their contention they have called attention by their counsel to the case of Fairbanks v. Fitchburg, 132 Mass. 48. The case is an authority against and not for the respondents' contention.

'Apart from the apparent unwillingness of the respondents to make assessments under the law, and the probability that if not removed they would persist in disregarding the law, I conclude from the evidence that the respondents are inexcusably ignorant of the true meaning and scope of the law and of the duties which it imposes on them. This was shown by the testimony of Mr. Bellamy, which by the stipulation above mentioned, the respondents adopted as their own. Mr. Bellamy testified that the board had made no assessments under the law, because until the entire sewer system is substantially completed it is impossible to determine

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