Day v. Board of Aldermen, 102 Mass. 310

Day v. Board of Aldermen

102 Mass. 310 | Mass. | 1869

Chapman, C. J.

By the charter of the city of Boston, the board of aldermen had exclusive authority to lay out, alter and *311discontinue streets and ways within the city. By the charter of the city of Springfield, this authority was vested exclusively in the common council. The mayor and aldermen were to act first in the matter; but their action was merely preliminary to the final and conclusive action of the city council. By St. 1866, c. 174, the board of aldermen of Boston were authorized, upon the laying out of streets, to assess upon the estates abutting on any street which might be laid out such portion of the expense of such laying out as was therein provided. By St. 1867, c. 94j the provisions of that act were “ extended and made applicable to the city of Springfield.” The act was to take effect when it should be accepted by the city council by a two thirds vote. Its obvious purpose was to enable the city authorities in Springfield to avail themselves of the betterment act which had been passed the previous year for the. benefit of the city of Boston ; but it does not, either expressly or by clear implication, purport to abolish the jurisdiction of the city council of Springfield, or confer upon the board of aldermen a new jurisdiction. We cannot doubt that, if the legislature had intended to make so important a change of jurisdiction, it would have been expressed, or at least clearly implied.

It is argued that the first clause of the first section of the act of 1866, namely, “ The board of aldermen of the city of Boston shall continue to have full power and authority to lay out,” &c., is by the act of 1867 made applicable to Springfield., There is some plausibility in this argument; but the most that can be said is, that it leads to doubt and uncertainty. It would not be a safe rule of construction to hold that the legislature has made the change, when it is doubtful and uncertain whether they intended to do so.

By St. 1868, c. 276, the power of the board of aldermen of Boston was extended so as to include estates not abutting on the street laid out, and limited as to the amount to be assessed ; and by St. 1869, c. 169, a similar power to make assessments for betterments was extended and made applicable to all the cities and towns in the Commonwealth. The act was to take effect when adopted by any town or city; but it was provided that *312in any city, when the power to lay out and alter streets was vested in any other board or persons than the board of aldermen, such board or persons should have the same power and authority as the board of aldermen in Boston. It is contended that, as this proviso is inserted in this act, but omitted in the act of 1867, c. 94, it is to be thence inferred that in the latter act a change of jurisdiction was intended. But we do not think such an inference is valid. The effect of the proviso is to remove all possible doubt; but, independently of it, we can see nothing in the act purporting to make any changes of jurisdiction. The whole court are of opinion that the city council of Springfield still retains its jurisdiction as to streets, and that the board of aldermen had no power to lay out the street mentioned in the petition.

There being no street legally laid out, the case does not present the question whether the act of 1867 was repealed by the St. of 1868, c. 276, § 2. Any opinion expressed in regard to it would be merely obiter.

Though the parties have appeared, and both are desirous that the court shall take jurisdiction of the case, it seems proper to say that the writ of prohibition is an appropriate remedy. It being a prerogative writ, and there being no statute provisions limiting the jurisdiction of the court in respect to it, a petition for it may be heard, and the writ may be issued in any county.

Writ of prohibition to issue