Zeo v. City Council of Springfield

• Decision Date: 18 May 1922
• Citation: 241 Mass. 340
• Parties: NICHOLAS ZEO v. CITY COUNCIL OF SPRINGFIELD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 340

NICHOLAS ZEO v. CITY COUNCIL OF SPRINGFIELD.

Supreme Judicial Court of Massachusetts, Hampden.

May 18, 1922

February 13, 1922.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Springfield. Way Public: building line.

Municipal Corporations, Officers and agents, Establishment of building line on public way. Certiorari.

The city council of Springfield on July 17, 1916, received a petition asking for the establishment of a building line on one side of a public street "substantially as shown on plan recently prepared for the widening of said . . . street . . . by the engineering department of said Springfield." After public hearings by the board of public works

(Sts. c. 1872, c 334; 1873, c. 126, Section 6), and a report by them recommending that the petitioners had leave to withdraw because the plan was not in conformity with a plan prepared by the board, leave to withdraw was given in July, 1918. On November 12, 1917, while the first petition was pending, a second petition was filed asking for the establishment of building lines on both sides of the street. The board of public works fixed a time and place for a hearing, of which notice was given to abutters and, after the hearing, reported on May 29, 1918, that common convenience and necessity required "that building lines should be established for both sides of said . . . Street . . . as shown on the plan accompanying this report . . ." On June 3, 1918, the board of aldermen referred to the committee of the whole an order to accept and adopt the report of the board of public works if concurred in by the common council. No further action was taken until March 1, 1920, "when the order was taken from the files, read, passed and sent down for concurrence." The council on March 8, 1920, concurred and on March 10 the order was approved by the mayor and was recorded in the registry of deeds on March 23, 1920. Upon a petition for a writ of certiorari and for a quashing of the proceedings, it was held, that

(1) The pendency of the first petition when the order of the board of public works upon the second petition was adopted was not a sufficient reason for setting that order aside;

(2) The lapse of substantially twenty-one months between the reference by the board of aldermen to the committee of the whole and the taking of further action was not fatal to the validity of the first order;

(3) Laches is not commonly imputed to public officers in respect of their governmental functions or as representatives of the sovereignty;

(4) Under Sections 1, 2 of St. 1901, c. 147, amending the charter of the city of Springfield, the board of aldermen and the common council became continuous bodies, and, if expedient and the interests of the city required, proceedings which had lawfully been begun by a preceding city council could be prosecuted by succeeding councils until completed and made effective;

(5) The fact that the membership of the board of aldermen and of the common council had been changed during the time when the order was pending in the board of aldermen in the circumstances did not make the first order invalid.

In an answer filed by the respondents in the petition above described, they alleged that the second petition "was referred by the board of aldermen to the board of public works, and that the board of public works, after notice to all parties interested, held hearings thereon." In an agreed statement of facts upon which, with the petition and answer the case was reserved for this court, it was agreed as follows: "It is hereby agreed that when the reports of the board of public works on said petitions Nos. I and 2 were filed with the City Council, the following papers and no others were attached thereto respectively and were before the City Council when it acted on said reports, and were filed with the records of the City Council, but were separated from said reports when the respondents' answer was prepared. Sheets marked on the bottom 1 and

2 were attached to the petition dated July 13, 1916 (petition No. 1). Sheets marked on the bottom 3 and 4 were attached to the petition dated

November 3, 1917 (petition No. 2)." "Sheets marked on the bottom 1 and 2 "referred to hearings under the second petition in April, 1918. Those

"marked on the bottom 3 and 4" referred. to hearings in 1916 on the first petition. The petitioners in these proceedings argued that the record showed that hearings on the second petition were held before the petition was filed. Held, that

(1) The action on the first petition at any stage ceased to be of any consequence;

(2) The answer of the respondents must be treated as a return; and it showed that before filing the report on the second petition, the board of public works fixed a time and place for a hearing of which the petitioner in common with other abutters received notice, and at which he could have appeared and been heard.

PETITION, filed in the Supreme Judicial Court on July 25, 1921, for a writ of certiorari directing the city council of Springfield to make a return of its proceedings relative to the alleged establishment of a building line on Chestnut Street between Liberty Street and Carew Street and upon the petition for the establishment of a building line on Chestnut Street to the end that the proceedings of the city council might be quashed or otherwise dealt with as law and justice might require.

Material facts appearing in the petition, answer and an agreed statement of facts are described in the opinion.

The argument of the petitioner, referred to in the opinion, that when the council "acted upon the establishment of the building line, it appeared that the hearings on the petition were held prior to the filing of the petition and that no hearings were held thereafter," was based upon the following statement in the agreed statement of facts: "It is hereby agreed that when the reports of the board of public works on said petitions Nos. 1 and 2 were filed with the city council, the following papers and no others were attached thereto respectively and were before the city council when it acted on said reports, and were filed with the records of the city council, but were separated from said reports when the respondents' answer was prepared. Sheets marked on the bottom 1 and 2 were attached to the petition dated July 13, 1916 (petition No. 1). Sheets marked on the bottom 3 and 4 were attached to the petition dated November 3, 1917 (petition No. 2)."

The petitioner's argument was as follows: "The record as to the hearings before the board of public works, although separated from the records of the city council before the return was filed, is properly before the court, because included in the agreed facts. The respondents, by agreeing to the facts relating to the record of hearings before the board of public works, have waived the objection that on a petition for certiorari the facts in their return cannot be controverted. Jones v. Metropolitan Park Commissioners, 181 Mass. 494 , 497. It was alleged in the petition and admitted in the answer that petition No. 2 was filed November 12, 1917. It was agreed [in the agreed statement of facts] that the record of hearings and no other papers were attached to the respective petitions when they were before the city council and the records marked `3' and `4' were attached to petition No. 2. These records . . indicate an order of notice dated July 26, 1916, respecting a hearing on August 8,...