Taintor v. Thurston

• Decision Date: 04 September 1906
• Citation: 78 N.E. 545,192 Mass. 522
• Parties: TAINTOR v. THURSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 522

78 N.E. 545

TAINTOR v. THURSTON et al.

Supreme Judicial Court of Massachusetts, Middlesex.

September 4, 1906

COUNSEL

Giles Taintor, pro se.

Gilbert A. A. Pevey, for respondents.

OPINION

MORTON, J.

This is a petition for a writ of certiorari to quash the proceedings of the respondents as mayor and city council of the city of Cambridge in accepting and laying out a certain street in said Cambridge called Brown street. The petitioner is an abutting owner whose land was taken in the laying out of the street. The presiding justice found that the allegations of fact contained in the answer of the respondents were true and thereupon ruled that no error of law appeared. He further found that substantial justice did not require the writ to be issued and dismissed the petition, and, at the request of the petitioner, reported the case to the full court, such order to be entered as law and justice may require.

We think that the ruling was right. One question, if not the principal one, is whether proceedings in relation to the laying out of a street begun before one council and board of aldermen may be continued before succeeding councils and boards of aldermen and finally completed by a council and board of aldermen composed of different members from that before which they were instituted and by which parties have been heard. A city council is a continuous body though its members and its officers may change from time to time. See Collins v. Holyoke, 146 Mass. 298, 15 N.E. 908; Fairbanks v. Fitchburg, 132 Mass. 42. In recognition of this the city charter of Cambridge provides that 'every officer of the city shall unless sooner removed continue after the expiration of his term of service to hold his office until his successor is appointed or elected and duly qualified.' St. 1891, p. 941, c. 364, § 33. In the transaction of business that may come before them the members of one city council may properly refer unfinished matters to those who are to succeed them and succeeding members may adopt or acquiesce in the official action of their predecessors upon such matters. They are not obliged in every case to begin de novo. In the laying out of a street the members of a city council act as public officers in the discharge of duties appertaining to the office which they hold, and to the municipality which the council represents. And it follows from the continuous nature of the body, and the purely official relation which those who compose it sustain to it that the laying out of a street begun and partly heard or finished before one council and board of aldermen may be completed before another council and board of aldermen. So far, therefore, as the petitioner relies upon the contention that a part of the proceedings took place and hearings were had before some other council and board of aldermen than those of 1905, which finally completed the laying out of the street and the taking of land therefor, his contentions must fail.

The petitioner further contends that the city council should have taken a view that there was no adjudication by it of public convenience and necessity, and that there was no hearing by the city council on the final laying out of the street and taking of the petitioner's land.

The proceedings were begun in June, 1902, and completed in December, 1905, and it is apparent we think, from an examination of the copies of the records of the board of aldermen, and of the common council, and of the board of survey which are annexed to and form a part of the answers of the defendants and which...