Simpson v. City of North Adams

• Decision Date: 21 October 1899
• Citation: 174 Mass. 450,54 N.E. 878
• Parties: SIMPSON v. CITY OF NORTH ADAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 450

54 N.E. 878

SIMPSON v. CITY OF NORTH ADAMS.

Supreme Judicial Court of Massachusetts, Berkshire.

October 21, 1899

COUNSEL

M.E. Couch and C.J. Parkhurst, for plaintiff.

E.M Wood and P.J. Ashe, for defendant.

OPINION

LATHROP J.

The charter of the city of North Adams (St.1895, c. 148) provides, in section 34, that there shall be certain administrative officers, and among them is "a board of public works, consisting of three persons." The duties of this board are designated in section 37, and it is declared: "The board of public works shall have cognizance, direction and control: (a) Of the construction alteration, repair, care and lighting of streets, ways and sidewalks." Then follows an enumeration of their other powers, and the section closes with these words: "The said board shall also, except as herein otherwise provided, have exclusively the powers and be subject to the duties liabilities and penalties which may be by law given to or imposed upon road commissioners of towns. ***"

In Walker v. Inhabitants of West Boylston, 128 Mass. 550, it was held that a petition to the superior court under Gen.St. c. 44, §§ 19, 20 (which correspond to the provisions of Pub.St. c. 52, §§ 15, 16, under which the petition in the case at bar is brought), for a jury to assess the damages occasioned to the petitioner's estate by a change of grade in a highway in the respondent town, was properly dismissed, on the ground that the application for damages should have been made to the road commissioners, and not to the selectmen. This decision was made under St.1871, c. 158, as amended by St.1873, c. 51, § 1, which, so far as material, reads as follows: "Said road commissioners, in matters concerning streets, ways, bridges, *** shall exclusively have the powers and be subject to the duties, liabilities and penalties of selectmen and surveyors of highways." The language is the same in Pub.St. c. 27, § 75. This section was repealed by St.1893, c. 423, § 1; but section 23 of the same act contains substantially the same language. When, therefore, the legislature, in the charter of North Adams, used language which once had been interpreted by this court, we must assume that it was intended to have the meaning and effect which the court had already given it, unless qualified by other words.

The petitioner contends that the words near the end of section 37 of the charter, "which may be by law given to or imposed upon road commissioners of towns," have reference only to future legislation. But this seems to us too narrow a construction of the language used. The section enumerates certain powers, and then concludes with the general clause already cited. It seems to us clear that the meaning is to include present, as well as future, legislation.

A more serious question arises in regard to the qualifying words of the general clause, "except as herein otherwise provided." The petitioner relies upon certain sections of the charter to cut down the powers given to the board of public works by section 37. Thus, section 13, in regard to the city council, provides: "The council shall, so far as is not inconsistent with this act have and exercise...