Hodgdon v. City of Haverhill

• Decision Date: 01 January 1907
• Citation: 193 Mass. 327,79 N.E. 818
• Parties: HODGDON v. CITY OF HAVERHILL (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 327

79 N.E. 818

HODGDON v. CITY OF HAVERHILL (two cases).

Supreme Judicial Court of Massachusetts, Essex.

January 1, 1907

COUNSEL

Walter S. Hodgdon, pro se.

G. M G. Nichols, for defendant.

OPINION

SHELDON, J.

The first of these actions appears to be a petition to recover back the amount of assessments for street watering, assessed upon the petitioner's estate in Haverhill for the successive years from 1897 to 1904, inclusive, by the boards of aldermen of Haverhill for those respective years, upon the averments that he had protested in each of these years against sprinkling the street in front of his estate, that in each year he petitioned the board of aldermen for an abatement but that generally his petitions were referred to the files without having been read, and that he was not notified by the respective boards of aldermen of any action taken by them. He avers that the first three of these assessments were collected from some person to him unknown, and that the last five were paid by him under protest. The respondent filed a general demurrer to this petition; and the case comes before us on the petitioner's appeal from an order of the superior court dismissing his petition.

These assessments appear to have been laid under St. 1897, p. 390 c. 419, now Rev. Laws, c. 26, §§ 26, 27. We find no averment in the petition upon which it can be claimed that the assessments were not levied in compliance with the provisions of this statute; and its constitutionality, as applied to occupied estates in the central portion of a large city, has been affirmed upon careful examination by this court. Sears v. Boston, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834. The mere averment that the lot opposite the petitioner's estate is unoccupied, belongs to two owners, and is divided in the middle by a fence, is in no sense equivalent to an averment that the petitioner's estate is not an occupied estate within the central portion of a large city. No attempt has been made to quash any of these assessments by a petition for certiorari. Rev. Laws, c. 192, § 4. No abatement has been made by the assessors under Rev. Laws, c. 26, § 27. No attempt has been made by petition for mandamus or otherwise, to compel action by the boards of aldermen or by the assessors upon any proceedings taken by the petitioner before them. Nor is the question presented whether the petitioner could treat the nonaction of the boards of aldermen upon his petitions as a refusal by them to give him any relief; and whether he could thereupon obtain redress under the provisions of Rev. Laws, c. 12, §§ 77, 78. Apart from the difficulties stated in the memorandum of the justice of the superior court, and assuming without intimating that the petitioner could find a way of getting over these difficulties by amendment, we see no ground upon which the petition can be maintained. Accordingly the order of the superior court dismissing this action must be affirmed; and it is

So ordered.

The second case is an action of contract, in which the plaintiff's declaration reads as follows: 'And now comes the plaintiff in the above entitled action, and says that the defendant is indebted to him in the sum of five hundred and eighty-three dollars and forty-four cents, with costs, to wit: That, in open court, on the second day of December, 1903, at Haverhill; and on the sixteenth day of June, 1904, at Salem; and on the thirtieth day of November 1904, at Lawrence, the defendant confessed to making a forcible entry upon the plaintiff's close, in June, 1885, and to appropriating sixty square feet or one tenth of the plaintiff's front yard for sidewalk...