City of Lowell v. Hadley
49 Mass. 180
Mass.
1844
Check Treatment
Dewey, J.

The objection to the validity of this assessment, that it is not made upon the estates proportionally and equally, in reference to the value of the several lots to which the sidewalk is appurtenant, is attempted to be maintained upon principles of constitutional and statute law applicable more particularly to taxation for those objects for which taxes are assessed for general purposes of defraying state, county, and town expenditures, and which have no direct bearing on cases like the present, when the assessment is of a limited and local character, and is authorized by special statute provisions regulating the subject. This point was somewhat considered in Goddard’s case, 16 Pick. 504, and, as it seems to us, furnishes no sufficient ground of defence.

The ninth section of the charter of the city of Lowell (St. 1836, c. 128,) authorizes the city council to “ cause any streets, public places, or squares, in the city, to be graded, paved,” &c. and to “ cause permanent sidewalks to be constructed on the same, in front of buildings, at the expense of the owners thereof, and temporary ones in front of vacant lands, at the expense of the abutters, or of the city.”

The first inquiry therefore is, whether Worthen Street was such a street or public place as would authorize the city council of Lowell to direct the construction of a sidewalk on the same, *192at the expense of the abutters and owners of buildings on such street. It is contended that Worthen Street was not legally laid out as a street, by the city council. The most prominent ground of objection is, that the location and establishment of such street were illegal and void, by reason of want of notice to the defendant of the proceedings had thereon; he being an owner of land over which said street was proposed to be laid. Such notice to all the owners of real estate is said to be required, as well by force of the great principles of constitutional law, as by the express provisions of the ordinances of the city of Lowell, directing the mode of laying out streets and ways. It is quite sufficient for this case, that it is required by the latter, in c. 18, § 1. This ordinance requires “ notice to the several owners of all land over which said street is proposed to be laid.” Was the defendant an owner of land within this provision? That depends upon the answer to be given to this question; Is a right of way, over the land which is proposed to be taken for the street, such an interest as creates ownership of the land, within the meaning of the ordinance ? The decision of this point is unnecessary in the present case, for reasons which will be presently stated. Suppose the doctrine contended for by the defendant on this point to be correct, and this right of way to be an interest in real estate, requiring notice to the party having such easement, before the easement be destroyed by the creation oí a public street, the further question at once arises, whether the omitting to give such notice will authorize the defendant to interpose a defence to the present demand upon him, or whether he must first vacate the adjudication laying out the street, by instituting proper proceedings and having the same quashed on certiorari. If this were a question arising upon the laying out of a public highway, and it could be shown that such highway had been actually laid out by the county commissioners, by an order apparently regular and formal, it would not be competent for the defendant incidentally to raise the question of due notice to the parties interested; but he must resort to a writ of certiorari. The same rule applies to the laying out of streets, in the city of Boston, by the mayor and aldermen, who, *193in that city, have succeeded the county commissioners in that duty; the laying out of such streets being held to be of similar character with that of public highways laid out by county commissioners. The doubt then is, whether the laying out of streets by the city council of Lowell, under the provisions of the city charter, is subject to the same rule, or whether this is to be treated as a town way. If this be considered the same as the laying out of a way by selectmen, which is to be approved by a vote of the town, and constituting what is usually known as a town way, then it would be competent for the defendant incidentally to raise the objection of want of notice. Commonwealth v. Weiher, 3 Met. 445. But, upon full consideration of this point, we are of opinion that the laying out of streets by the city council of Lowell is of the same character, and ought to have the same effect, as the laying out of streets by the mayor and aldermen of the city of Boston.

We perceive no objection to the laying out of this street, on the ground that the report of the committee did not remain in the clerk’s office seven days before being acted upon, or because it was recommitted. The first of these objections seems to be unfounded in fact, and the second is of no avail, as both branches of the city council took up the subject upon the original report, and, by accepting that report, virtually discharged the committee from any further action thereon.

Supposing the preceding objections to be unavailing, it is then further urged, that this assessment upon the defendant cannot be enforced, by reason of certain defects in the proceedings respecting the sidewalk. 1. In reference to the construction of the sidewalk, it is said that it does not conform to the ordinance directing its construction. 2. That no report of the expenses of construction was made to the auditor within ten days after its completion.

As to the first, the ordinance directed the sidewalk to be eight feet in width, and to be constructed of brick and edge stones in front of occupied lots, and timber and plank in front of vacant lots. It is admitted that eighty nine of the one bun dred and fifteen feet, in front of the defendant’s premises, were *194built of granite flag stones, with paving stones between, which was so done, however, at the request of the defendant; which will estop him from making any objection on that account. Then, in certain other places, for short distances, it was also built in the same manner, with the consent of the immediate abutters, but without any direct assent of the defendant. The city ordinance, c. 16, ■§> 3, requires “ that every sidewalk shall be built, by the superintendent of streets, of such materials and dimensions as the city council may have prescribed.” The question is, whether the deviation from the ordinance is fatal to the plaintiffs. There was a deviation, an obvious one. In connection with this, we may also consider the objection arising from the departure from the ordinance as to the width of the sidewalk. It was constructed, a part of the distance, seven to seven and a half feet wide, under an ordinance directing it to be constructed eight feet wide. Is this defect in the width fatal to the assessment of a tax for it ? These objections, as to the departure from the city ordinance in the manner of constructing the sidewalk, doubtless present the strongest ground of defence that has been taken to the plaintiffs’ right to maintain this action. The general principle, that the city ordinance must be adhered to, is a sound one. There is, however, as we think, a sufficient answer to this objection, in the present case, which will take the case out of this general rule. First, as to • the alteration in the mode of construction, in certain places, corresponding to the alteration made opposite to the premises of the defendant, and by his request, we think his assent thereto may be inferred from his request for the change in the construction in front of his own premises. Then, secondly, as to the deficiency in the width of the sidewalk, we think that was a matter rather for the city council to deal with than the defendant. If the change in this respect had been such as to increase the assessment upon the defendant, he might perhaps take the objection. But the facts negative that ground ; the objection being that a sidewalk was constructed of less width, and therefore of less expense, than was required by the city ordinance.

Without prescribing any general rule on this subject, and *195conceding that the subject of deviation from the ordinance is not free from difficulties in limiting the extent to which departures may be permitted in the mode of construction, the court are of opinion, that the grounds of defence here relied upon are insufficient, and that, when the deviation is made at the request or with the assent of the land owner liable to be assessed, he should be estopped from setting it up; and also when the departure is not substantially and palpably an intended deviation from the ordinance; and especially when not attended with any substantial increase of expense, and an assessment is made therefor by the city authority, it is not competent for one, who is otherwise duly assessed, to avoid the payment of his assessment, by raising the objection of a departure from the ordinance in the mode of construction.

The second objection taken is, that the city ordinance, c. 16, <§> 3, requires the superintendent of streets to keep an exact account of all expenses incurred in the construction of a sidewalk, and to report the same, in writing, within ten days after the work is completed, to the auditor of accounts. The case stated by the parties finds that no evidence exists showing any such report made within ten days. Assuming that no such return was in fact made within that period, the question is, whether this is a condition precedent to the making of a valid assessment, or is merely directory to the superintendent, and intended to secure the general faithful discharge of the duties assigned to him, and to facilitate the keeping of the accounts of the various disbursements of the city. It seems to us to be only directory, and not a condition precedent, without the strict performance of which an assessment will be illegal. Cases somewhat analogous, where positive statute provisions have been held to be only directory, may be found in Williams v. School District in Lunenburg, 21 Pick. 76, and Pond v. Negus, 3 Mass. 230.

Upon the whole matter, therefore, the result is, that the plain tiffs are entitled to recover the amount assessed on the defendant