City of Cambridge v. County Commissioners

117 Mass. 79 | Mass. | 1875

Gray, C. J.

The statutes authorize the city council of Cambridge to lay out streets and sewers, and to estimate the damages which any person may suffer thereby; and require the application, by any person dissatisfied with its decision in the estimate of damages, to the county commissioners for a jury, to be made within six months thereafter. Sts. 1846, o. 109, § 18; 1853, c. 155, § 7; 1859, e. 137.

The first order of the city council in the present case is admitted to have been made in the exercise of this authority. If there was any defect in the previous notices thereof, it could be taken advantage of only by petition for a writ of certiorari to set aside that order. Noyes v. City Council of Springfield, 116 Mass. 87, and cases cited.

The estimate of damages was, and properly, if not necessarily, should be, part of the same order by which the sewer was laid out and the land taken. Russell v. New Bedford, 5 Gray, 31. The decision that no damages be awarded was an estimate of damages, within the meaning of the statute, and the time for applying for a jury began to run from the date of that decision. Monagle v. County Commissioners, 8 Cush. 360. Smith v. Mayor & Aldermen of Boston, 1 Gray, 72. Cambridge v. County Commissioners, 6 Allen, 134.

By making one such order, the city council exhausted its powers, and could not afterwards entertain a new petition by the same petitioner for damages by the same laying out. Any subsequent action of the city council on such a petition could have no validity as the judgment of a tribunal having jurisdiction of the case; but, if at all, only as the action of agents of the city by way of compromise and settlement of a claim against it. In Revere v. Boston, 14 Gray, 218, cited for the respondents, there was no adjudication upon this point; because, whether the waiver set up in that case was or was not allowed any effect, the petition for a jury was filed too late.

If the provision of the Gen. Sts. o. 43, § 73, extending the time of applying for a jury in the case of town ways, has any application to cases of this kind, it cannot be deemed its purpose that a petition for a writ of certiorari to set aside the original order of the city council, filed after the time of applying for a jury has elapsed, should revive the right to,apply for a jury.

The necessary conclusion is, that after the expiration of six months from the first order the county commissioners had no jurisdiction of the subject matter of the petition for a jury, and this want of jurisdiction could not be supplied by any waiver. Custy v. Lowell, ante, 78, and cases cited.

Writ of certiorari to issue.