168 Mass. 239 | Mass. | 1897
This is a petition for a writ of certiorari to quash certain sewer assessments made by the respondent as superintendent of streets of the city of Boston on estates of the petitioners abutting on the street in which the sewer was built.
The first question is whether certiorari lies. The respondent contends that it does not, because, first, he is an executive officer performing a purely ministerial duty in levying the assessments, and, secondly, if that is not so, because the remedy is by petition for abatement.
The assessments were made by virtue of the provisions of St. 1892, c. 402. By § 1 of that act the mayor and aldermen may order the superintendent of streets to make sewers, and he is bound to carry out the orders thus passed. By §§ 2 and 3, the expenses of the work so ordered are to be assessed to an amount not exceeding four dollars per lineal foot of sewer on the parcels of land bounding on the highway or strip of land in which the sewer is built, and the superintendent of streets is directed to apportion this assessable cost amongst these parcels in a manner therein provided. In other words, he is to determine what the assessable cost is, and then to apportion it amongst certain estates; and we think that in doing this he acts judicially, and that therefore certiorari will lie to correct any errors of law affecting the assessment. Snow v. Fitchburg, 136 Mass. 179. Attorney General v. Northampton, 143 Mass. 589.
Of the remedy by abatement it is to be said that this is not a case in which the aggrieved parties are seeking relief on the ground that the assessments are too large, or that their estates have been overvalued, or for any other like reason. They contend, on the contrary, that the assessments are wholly invalid by reason of the failure of the superintendent of streets to
It is not contended, and we think that it could not be successfully, that certiorari will not lie because the assessments if paid might be recovered back in an action at law. Barnard v. Fitch, 7 Met. 605.
We come then to the question of the validity of the assessments. In considering this question, any facts stated by the respondent in his return or answer, and relied on by him, are to be taken as true so far as material, and unless it appears that substantial justice requires the writ to issue the petition should be dismissed; otherwise, it should be granted. Farmington River Water Power Co. v. County Commissioners, 112 Mass. 206, 212. Dickinson v. Worcester, 138 Mass. 555, 560. Slocum v. Brookline, 163 Mass. 23, 25. If the assessments were wholly invalid, it is obvious that justice would require that they should be quashed. So much of the answer or return as recites the action of the so called citizen’s relief committee was not relied on at the hearing before the single justice, nor at the argument in this court, and we therefore treat it as waived.
The petitioners contend that the assessments are invalid because the superintendent of streets did not observe the requirements of the order of the mayor and aldermen in regard to the construction of the sewer, and because he did not comply with the provisions of certain statutes, and of the ordinances of the city of Boston; St. 1885, c. 266, § 6; St. 1890, c. 418, §§ 4, 6; St. 1891, c. 323, § 13; Rev. Ord. (1892), c. 36, § 7; which they insist were in the nature of conditions precedent to the construction of the sewer, whose non-observance vitiated the assessments.
It is contended that the order of the mayor and aldermen was violated, because the sewer was built, in part, of 24 inch pipe, and not wholly of 15 inch and 12 inch pipe, as it is insisted the order directed. Whether this- point is well taken depends on the construction to be given to the order. The
The petitioners further contend that the estimated cost of the sewer exceeded $2,000, and that the superintendent should have invited by advertisement proposals for its construction, as provided by statute and ordinance, and especially by St. 1890, c. 418, § 4; and that the contract which was made should have been accompanied by a bond or other security for its faithful performance, as required by §§ 5 and 6 of the same act. We understand the answer to admit in substance that the estimated cost exceeded $2,000. It is expressly conceded
The effect of this construction is to prohibit the making and letting of contracts except in the manner provided by statute. The approval of the letting by the mayor, if what he did is to be so construed, was ineffectual. The statute contemplates on his part a precedent authority to contract without inviting proposals, not a subsequent ratification or approval of a contract
The defendant contends that, under St. 1892, c. 402, he could build the sewer by contract or not, as he saw fit. But there is nothing in that statute which expressly or by implication repeals St. 1890, c. 418, and the matters to which the two acts relate are different, as is shown in part by their titles. The first three sections of St. 1890, c. 418, relate to the tenure of office of the persons therein named. The next three relate to the manner in which contracts by the public departments shall be made. The seventh relates to the manner in which the treasurer shall dispose of city bonds, and the eighth repeals a section of St. 1885, c. 266, which is wholly immaterial so far as the present question is concerned. On the other hand, St. 1892, c. 402, relates principally to the assessment and collection of the expenses incurred in making sewers, omitting any reference to the manner in which contracts are to be made for building them, and leaving that, as it seems to us, to be governed by laws already enacted. Otherwise it would follow that, though the manner in which contracts should be made was carefully guarded in respect to all other departments, in the important matters of sewers the superintendent could do as he saw fit. We see nothing from which it fairly can be inferred that the Legislature intended such a result. A slight argument against it may also be found in the fact that by § 7 two acts are expressly repealed, but no reference is made to St. 1890, c. 418.
We think, therefore, that there was no written authority given by the mayor to the defendant to contract without inviting proposals by advertisement, and that the neglect of the latter to advertise and to take a bond or other security renders the assessments invalid. Whether, if all of the other provisions of the statute had been complied with, the failure to take a bond
Other objections to the validity of the assessments have been urged by the petitioners, but we find it unnecessary to consider them.
Petition granted ; writ to issue.