Filoon v. City Council of Brockton

• Decision Date: 21 April 1925
• Citation: 252 Mass. 218,147 N.E. 670
• Parties: FILOON et al. v. CITY COUNCIL OF BROCKTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 218

147 N.E. 670

FILOON et al.

v.CITY COUNCIL OF BROCKTON.

Supreme Judicial Court of Massachusetts, Plymouth.

April 21, 1925.

Report from Supreme Judicial Court, Plymouth County.

Petition for certiorari by Mary H. Filoon and others against the City Council of Brockton to quash a betterment assessment for laying out of an alleged public way. Petition denied.

P. Nichols and F. S. Moulton, both of Boston, for petitioners.

W. G. Rowe, S. B. McLeod, and J. E. Handrahan, all of Brockton, for respondents.

PIERCE, J.

This is a petition for a writ of certiorari, brought by the owners of a certain parcel of land, in Brockton, against the city council and the board of highway commissioners of the city of Brockton, to quash a betterment assessment levied on portions of the parcel in question for the benefit alleged to have been conferred thereon by the laying out of an alleged public way, called at first ‘Center Street Extension’ and afterwards ‘Legion Parkway.’

The petitioners contend that the assessments were illegal and void for the following reasons:

‘(1) The laying out of Center street extension * * * was accomplished for the purpose of providing a place for the storage of automobiles, and not for the legitimate purpose of a public way, and a city or town has no power to expend the public funds for the purpose of providing a place for the storage of automobiles belonging to private individuals, or to assess betterments for the cost of acquiring land and preparing it for use for any such purpose.

‘(2) The power to lay out streets and to assess betterments is vested by law exclusively in the board of highway commissioners, and the laying out of a street and the assessment of betterments by the city council is void.

‘(3) The city council had no power to subdivide the petitioners' parcel without their consent, and to impose a lien for assessments upon subdivisions thus created.’

[1] We pass the first objection to the legality of the assessment and consider the fundamental question of the power of the city council. By the enactment of St. 1881, c. 192, and by the adoption of the act by the inhabitants, the town of Brockton became a city with a government vested in a mayor, a board of aldermen and a common council, which boards in their joint capacity were denominated city council. Section 26 of its charter, relating to its powers to lay out streets, provides:

‘The city council shall have the same powers in relation to the laying out, acceptance, altering or discontinuing of streets and ways, and the assessment of damages, which selectmen and inhabitants of towns now have by law, all petitions and questions relating to the same, however, being first acted on by the mayor and aldermen.’

St. 1912, c. 340, established a board of highway commissioners for the city of Brockton to serve for a term of three years, one to be elected each year. In relation to the authority of the board, section 3 provided that said board--

‘shall have cognizance, direction and control of: (a) The construction, location, repair and supervision of all streets, ways and sidewalks * * * all of which powers, rights and duties shall be exercised exclusively by said board.’

The Revised Ordinances of 1899, chapter 5, of the of Brockton, in substance contain the provisions of General Statutes, chapter 43, relating to the procedure which cities and towns are required to pursue in the laying out of streets and townways. St. 1871, c. 158; Pub. St. c. 49; R. L. c. 48. Section 40 of the ordinance more particularly provides that:

‘Every petition for the laying out, alteration or discontinuance of a street or way, shall be accompanied by a plan or profile satisfactory to the city engineer.’

And section 42 provides:

‘No street, townway or private way, which may be laid out, altered, or discontinued by the mayor and aldermen, shall be established, until such laying out, alteration or discontinuance, with the boundaries and admeasurements of said way, and also the amount of damages which said mayor and aldermen shall determine has been sustained by any persons in their property by such laying out, alteration or discontinuance, shall have been reported [to] the common council, and accepted and allowed at a regular meeting thereof.’

It is agreed that:

‘During many years prior to and up to the passage of chapter 340 of Acts of 1912 the procedure pursued by the city of Brockton had been for the city council with the approval of the mayor to pass loan orders, then for the city council with the approval of the mayor to lay out the streets in the manner provided by Revised Ordinances of 1899 above quoted; then for the superintendent of streets under the direction of the committee on highway and fuel to make entry and construct the street which had been laid out by the city council.’

In the absence of a provision such as is contained in St. 1870, c. 337, and in St. 1871, c. 158, and in succeeding general and special laws, to the effect that the said street commissioners shall...