Taber v. City of New Bedford

• Decision Date: 20 June 1883
• Citation: 135 Mass. 162
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles Taber & others v. City of New Bedford

135 Mass. 162

Charles Taber & others v. City of New Bedford

Supreme Court of Massachusetts

June 20, 1883

Argued October 27, 1882

Bristol.

Judgment for the defendant affirmed.

H. M Knowlton & F. B. Greene, for the plaintiffs.

T. M Stetson & L. L. Holmes, for the defendant.

Devens, J. C. Allen Colburn & Holmes JJ., absent.

OPINION

Devens, J.

In this action, which was brought on May 3, 1882, the plaintiffs seek to recover the amount of a betterment tax assessed upon them by the mayor and aldermen of the city of New Bedford, on account of the laying out and construction of an extension of Spring Street in that city in March, 1880. That, if such extension had been legally laid out and accepted, the betterment tax was assessed by the proper authority, is not controverted; but the plaintiffs contend that they may now show that there was no legal laying out or acceptance, or at least that the record fails to prove this, and that they are therefore entitled to recover.

The duty of laying out streets is entrusted to public officers, who are not agents of the city, but have independent functions in regard to this matter. They exercise quasi judicial duties, and derive their power from the sovereign authority. Brimmer v. Boston, 102 Mass. 19. If mistakes are made by them, or if they fail to observe the statutory requirements in the duties they undertake to perform, the remedy sought should be by certiorari, upon the return of which their proceedings may be quashed, if it is found that the errors committed by them are such as to demand it. The adjudication made by them cannot be impeached incidentally for errors in the mode of proceeding, not affecting their jurisdiction. Brimmer v. Boston, ubi supra. The objection that the laying out, with the boundaries of the street and admeasurements, was not filed in the city clerk's office seven days at least before its acceptance, as required by the Gen. Sts. c. 43, § 65, was considered in Poor v. Blake, 123 Mass. 543. It was there held that this provision was not applicable to ways laid out by city authorities. Town ways, although laid out by the selectmen, do not become such until the further action of the town. All that was required in the city of New Bedford was the concurrence of the two branches of the city government, who were entrusted with the exclusive power to act.

Nor was the laying out void because the lines and measurements of the way were left to the city surveyor by direction of the mayor and aldermen. ^[*] This is not to be deemed a delegation of their power to adjudicate to the surveyor, but simply a use of his skill in arranging the exact details of the way laid out by them.

If any error had been made as to either of these matters, it certainly was not of such a character as would affect the jurisdiction of the two branches of the city government.

The ground most relied on by the plaintiffs, in order to show that the assessment of the tax here sought to be recovered back was illegal, is that there was no legal acceptance of this street. By the St. of 1876, c. 193, (Pub. Sts c....