Wells v. Street Com'rs of Boston

• Decision Date: 03 March 1905
• Parties: WELLS et al. v. STREET COM'RS OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 451

73 N.E. 554

WELLS et al. v. STREET COM'RS OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1905

COUNSEL

H. E. Bolles, Chas. H. Tyler, Owen D. Young, and Olcott O. Partridge, for petitioners.

Thos M. Babson, for respondent.

OPINION

KNOWLTON C.J.

This is a petition for a writ of certiorari to quash an assessment of betterments made under St. 1896, p. 520, c. 516, on account of the location and construction of Summer street and Cove street, and the south terminal station in Boston, under the requirements of this statute. It comes before us on a report by a single justice, and the principal questions are whether the expenditures were made in violation of statutes under which the work should have been done, in order to lay the foundation for an assessment, and whether the provision for the assessment is unconstitutional. The contention is that this statute, by implication, required the work of construction of these two streets to be done in the same way as if they had been laid out under St. 1891, p. 880, c. 323 sometimes called the 'Board of Survey Act,' as amended by St. 1892, p. 464, c. 418. If the work had been done under this amended statute, the superintendent of streets, as an officer in charge of a department of the city would have been acting subject to the provisions of St. 1890 pp. 371, 372, c. 418, §§ 4-6, and a disregard of these provisions might defeat the right of assessment. Warren v. Street Commissioners, 181 Mass. 6, 62 N.E. 951. But the statute under which the city was acting in the construction of Summer street and Cove street does not contain a provision making these earlier statutes applicable, as did the statute for the laying out and construction of Huntington avenue, under which Warren v. Street Commissioners was decided. See St. 1894, p. 463, c. 416, § 4. It is a statute providing in detail for the construction of a great public improvement. The section which relates particularly to the changes in streets (St. 1896, p. 525, c. 516, § 11) prescribed exactly what shall be done, except that the required width of each of these two streets is stated as at least 100 feet, thus leaving it possible to make them of a greater width. It calls for the discontinuance of several streets and parts of streets, and the extension of others to specified points. The part which the city and its officers were to take in regard to these is stated in a single sentence, as follows: 'Said board of street commissioners shall discontinue, widen and lay out said streets in such manner as shall be approved by the mayor, and said city shall construct said streets and make said changes in said bridges as above specified.' The section ends with these words: 'The Supreme Judicial Court, or any justice thereof, shall have jurisdiction in equity to enforce the provisions of this section.' It is manifest that most, if not all, of the provisions of the board of survey act were inapplicable to the changes to be made under this statute. Except in a single particular, the board of street commissioners had no discretion in regard to the discontinuance or widening or extension of any of these streets. The only discretion that was given to anybody in regard to the nature of the changes was as to whether Summer and Cove streets should be 100 feet wide, or of a greater width. In regard to this the street commissioners could not finally determine, but their decision was to be subject to the approval of the mayor. The...