135 Mass. 490 | Mass. | 1883
The St. of 1868, c. 160, provides, in a sense, for a public improvement.
The objection taken in the petition of Grace and others, that the St. of 1868, c. 160, is unconstitutional, has not been argued. The general object of the statute is one which it is within the power of the Legislature to effect, whether it be regarded as an exercise of the police power or of the right of eminent domain. The ultimate provision for the assessment of damages is the same as for land taken for a town way. The ultimate provision for the assessment of benefits is not by a jury, but by abatement in the same manner “ as other taxes.” If this assessment is regarded as a tax for local purposes of a public nature upon those
The petition of O. F. Clark, and seven others, addressed to the board of health, complained of “large quantities of stagnant water standing in an open drain between Walnut Street and Central Avenue, from which arise such unhealthy and sickening odors and filth as to cause great sickness in the neighborhood,” and prayed for a hearing. This was received on October 21,1878, and on November 18, 1878, was referred to the next city government. By the city government is usually meant the mayor, board of aldermen and common council of a city. But as the board of aldermen of the city of Newton was also the board of health, this may be taken as a reference to the board of health of the next city government. By the records of the board of health of April 21, 1879, it appears that this petition was regarded as still pending, and the board voted to view the premises, which was done, as appears by the records of May 5. On May 19, 1879, it was ordered that the city engineer, under direction of a committee, be “ authorized and instructed to widen, straighten and deepen the watercourse running from Walnut Street, ward two, through Central Avenue, Craft and Adams Streets, to brook; ” and “ the clerk was instructed to notify abutters on watercourse, from Walnut Street to Laundry Brook, of a hearing, on Monday, June 2,1879, at 5.15 P. M., under chapter 160, acts of 1868.” On May 26, 1879, a warrant was issued by the city clerk to one of the constables to notify the abutters on the brook, from Walnut Street to Laundry Brook, of the intention of the board of health to enter upon their premises for the purpose of widening, straightening and deepening said brook from Walnut Street, ward two, through Central Avenue, Craft and Adams Streets; and “ that a hearing will be given by said board to all parties interested in the matter as to the necessity and mode of abating the nuisance caused by said brook, and the question of damages and of the assessment and apportionment of
We think it abundantly appears that the board were attempting to proceed under the St. of 1868, c. 160, and that the notice gave information that the board so intended to act, to all persons upon whom it was duly served. It does not appear by the notice that the hearing was to be had upon the petition of Clark and others. But a preliminary hearing, at which Clark appeared, had been had on May 5, when the matter was laid upon the table until the highway committee should report. This committee reported on May 19, 1879, after which the order to the city engineer was passed, and then the order to notify the abutters. The petition of Clark and others did not, in terms, pray for anything, but it did describe a nuisance from stagnant water in a drain. That petition was still before the board of health, and it was the same subject of which Clark and others complained on which the board took action, and on which a hearing was had. The only reasonable construction of the petition is, that the petitioners wanted a hearing in order that the nuisance might be abated, and we think it fairly appears that it was on this petition, as a basis of action, that the board proceeded. Reasonable certainty is undoubtedly required in the proceedings of a board of this character, as well as a substantial compliance with the statute; but technical exactness cannot be expected, and ought not to be required. See Westport v. County Commissioners, 9 Allen, 203.
The hearing was had on June 2, 1879, after which the following order was adopted: “ Ordered by this board, that the city engineer, under the direction of a committee consisting of Aider-men Edmunds, Barnes and Eldredge, be and is hereby authorized
Without examining at this point the action taken on this recommendation, it appears that subsequently the board of health assessed the damages sustained by widening, deepening and straightening the brook from Walnut Street to Laundry Brook, and also assessed upon the several persons benefited their proportionate share of the expense of widening, deepening and straightening the brook between these points, “on the basis of the city bearing the expense of the maintenance of the drain.” These expenses amounted to $11,538.95, of which the sum of $4539.74 was ordered to be paid by the city, and $6999.21 by individuals, who are the petitioners in the petition of Fuller and others. Of these petitioners it appears that Michael Cavanagh, Michael C. Lucy, Francis E. Hamblin, William Waldron, Willard Gay and Alfred Tufts were not served with notice, as required by the statute, and John E. Chamberlain was not, unless he be an heir of Nathan B. Chamberlain, and this is not shown. The knowledge which these persons had, after the final hearing of June 2,1879, when the work was authorized to be done, is not equivalent to notice. It was not knowledge that the work was being done pursuant to the St. of 1868, c. 160; and that they were or might be subject to assessment. Besides, it was too late. The decision had then been made. They could not then prevent the execution of the work, or be heard upon the “necessity and mode of abating the nuisance.”
It does not appear that there was any service of notice by posting or advertising in the public newspapers, or that the lands of these persons were unoccupied, and that they were unknown or without the State. St. 1868, c. 160, § 4. The proceedings as to them must be regarded as taken without notice.
The remaining objections taken in the petition of Fuller and others cannot avail, if the nuisance was one that the board of health could abate under the St. of 1868, c. 160. One objection is, that the powers of the board of health were delegated to a committee. But § 5 authorizes the board to cause the nuisance to be abated according to its discretion. The board could do the work by agents, and their performance of it has been in effect ratified by the board. Hitchcock v. Galveston, 96 U. S. 341.
Another objection is, that the expenses were not assessed proportionally upon all persons benefited, and that items were included in the expenses that ought to have been excluded. This is a matter for abatement, if the petitioners have been assessed more than their proportionate share. Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89. No new notice was necessary of an intention to make the assessments. Prince v. Boston, 111 Mass. 226. The report of the committee of January 2, 1880, upon the assessment of damages and benefits, was that they were made “ on the basis of the city bearing the expense of the maintenance of said drain.” The acceptance of the report, and the passage of the orders and of the warrants to the city treasurer accompanying it, — which were drawn in accordance with the report, — must be held to be an adoption of the report, and an adjudication that the expense of keeping the drain in repair shall be borne by the city.
Another objection is, that the assessment was void for uncertainty, not in respect to the persons, but in respect to the real ' estate benefited thereby. It appears by the answers of the respondent, “ that the assessments were in fact made upon them ” (the petitioners) “ as owners of the parcels of land described in schedule ‘A,’ hereto annexed, and that the same were exhibited
There remains the question, whether the proceedings are not altogether void, on the ground that the subject matter was not within the purview of the St. of 1868, c. 160. The petition of Clark and others described a nuisance “ owing to large quantities of stagnant water standing in an open drain between Walnut Street and Central Avenue.” However meagre and inadequate this description is, the nuisance described is of a kind covered by the statute. It does not appear whether this was a public or private drain. Clark, in his letter to the board of health of June 2, 1879, calls it “ the ditch you caused to be dug through my land.” It does not appear for what purpose the drain was made. In the orders of the board of health it is sometimes called a watercourse and sometimes a brook. A view of the premises might show that the nuisance could only be
The petition of James Grace and others relates solely to the improvements made between Laundry Brook and Boyd’s Pond. The first intimation of the necessity or propriety of making these improvements is found in the report of the committee of October 6, 1879, which was after the order to widen, deepen and straighten the watercourse from Walnut Street to Laundry Brook had been executed, and the watercourse “finished as ordered.” The respondent in its answer says that the extension was “ made as a necessary part and consequence ” of the work originally undertaken. It is unnecessary to consider whether, if, after the completion of the work to Laundry Brook pursuant to the original order, it had then been found necessary to continue it to Boyd’s Pond, the petition of Clark and others would have been a sufficient basis for proceeding further. No notice whatever was ever given of any intention to widen, deepen and straighten the watercourse below Laundry Brook. The preceding notice expressly limited the intention of widening, deepening and straightening the watercourse to Laundry Brook. The order to straighten, widen and deepen the watercourse below Laundry Brook, from the culvert on Pearl Street
Writs of certiorari must therefore issue for the purpose of quashing the assessments upon those persons who received no notice. Ordered accordingly.
This statute, which is entitled an act extending the provisions of the Gen, Sts. c. 26, relating to the preservation of the public health, is as follows:
“ Section 1. When any lands in any city or town are wet, rotten or spongy, or covered with stagnant water, so as to be offensive to persons residing in the vicinity thereof, or injurious to health, the same shall be deemed to be a nuisance, and the board of health or health officer of such city or town may, upon petition and hearing, abate such nuisance in the manner provided in the following sections.
“ Section 2. Any one or more persons claiming to be injuriously affected by such nuisance may, by petition, describing the premises upon which such nuisance is claimed to exist, and setting out the nature of the nuisance complained of, apply to the board of health or health officer for its abatement, whereupon such board of health, or health officer, shall proceed to view the premises and examine into the nature and cause of such nuisance.
“ Section 3. If upon such examination the board of health or health officer shall be of opinion that the prayer of the petitioner or any part thereof should be granted, he or they shall appoint a time and place for a hearing upon the petition, and before the time so appointed shall cause reasonable notice of*492 the time and place to be given to the petitioners, the persons whose lands it may be necessary to enter upon to abate the nuisance, and any other persons who may be affected by the proceedings, and, except in those cities and towns in which the mayor and aldermen and selectmen constitute the board of health, to the mayor and the chairman of the selectmen, that they may be heard upon the necessity and mode of abating such nuisance, and the questions of damages, and of the assessment and apportionment of the expenses thereof.
“ Section 4. Such notice shall be in writing, and may be served by any person competent to serve civil process, upon the mayor and chairman of the selectmen, the petitioners, the owner or occupant of any land upon which it may be necessary to enter, or which may be benefited thereby, or his authorized agent, or by leaving an attested copy of such notice at the last and usual place of abode of such persons; but if the lands are unoccupied, and the owner or agent is unknown, or without the State, the notice to such owner may be served by posting an attested copy thereof upon the premises, or by advertising in one or more public newspapers in such manner and for such length of time as the board of health or health officer may direct.
“ Section 5. At the time and place appointed for the hearing, the board of health or health officer shall hear the parties, and, after such hearing, may cause such nuisance to be abated, according to his or their discretion; and for that purpose may enter and make such excavations, embankments and drains upon any lands, and under and across any streets and ways as may be necessary for such abatement: They shall also determine in what manner and at whose expense the improvements made shall be kept in repair, and shall estimate and award the amount of damage sustained by and benefit*493 accruing to any person by reason of such improvements, and what proportion of the expense of making and keeping the same in repair shall be borne by the city or town and by any person benefited thereby. The damages so awarded shall be paid by the city or town, and there shall be assessed to the several persons benefited by such improvements his proportionate part, to be ascertained as before provided, of the expense of making and keeping in repair such improvements, and the same shall be included in the next city or town taxes of such persons, and shall be a lien upon the real estate benefited thereby, and be collected in the same manner as other taxes upon real estate, and shall be liable to abatement as other taxes now are.
“ Section 6. The boards of health and health officer shall, within thirty days after the abatement of any nuisance in the manner herein before provided, make return to the city or town clerk, of their doings in the premises, which return shall be by him recorded in the city or town books.
“ Section 7. H the board of health or health officer shall unreasonably refuse or neglect to proceed in the matter of such petition, the petitioner may apply by petition to the Superior Court, or any justice thereof, who, upon a hearing and good cause shown, may appoint three commissioners, who shall proceed in the manner herein before provided.
“ Section 8. Any person aggrieved by the decision of the board of health, health officer or commissioners in their estimate and award of damages, may make complaint to the county commissioners for the county, at anytime within one year after return to the city or town clerk, whereupon the same proceedings shall be had as are now provided by law in cases where persons or parties are aggrieved by the award of damages by selectmen for land taken for a town way.”