Powers v. City Council

116 Mass. 84 | Mass. | 1874

Gray, C. J.

The city council of Springfield has general jurisdiction of the subject of altering highways in the city. Sts. 1852r c. 94, § 14; 1872, c. 334, § 4 ; 1873, c. 126, § 1. Day v. Aldermen of Springfield, 102 Mass. 310. And we have no doubt that this jurisdiction extends to those portions of the highways which lie at and near railroad crossings, provided that no alteration is made in the grade of a railroad except by the consent of the railroad corporation, and that no other tribunal has previously acquired jurisdiction of the raising or lowering of the highway ai the particular crossing in question, by proceedings duly commenced and not legally discontinued or determined.

But the mayor and aldermen of Springfield had joined with the directors of the Boston and Albany Railroad Company in a petition to the county commissioners, within the jurisdiction conferred upon them by the St. of 1872, e. 262, to change the grade of Main Street at this crossing, and proceedings upon that petition are still pending. All the objections made in the present case by the city council to the validity of those proceedings have been considered by the court in the case of Boston & Albany Railroad v. County Commissioners, ante, 73, except those relating to the qualifications of the persons nominated as members of the special commission to determine by what parties the order of the county commissioners shall be carried into effect and the expenses thereof paid; and if either of those nominations was illegal, it would not affect the jurisdiction of the county commissioners over the original petition, in case they shall be permitted to proceed thereon, by the final judgment of this court upon the writ of certiorari issued to them.

The jurisdiction of the county commissioners, having first attached to the subject of the alteration of the grade of Main Street at the railroad crossing, necessarily excluded the jurisdiction of any other tribunal over the same subject until those proceedings were ended. Stearns v. Stearns, 16 Mass. 167. Foster v. The Richard Busteed, 100 Mass. 409, 411. And that principle applies with peculiar force to this case, in which the mayor and aldermen, after joining with the directors of the railroad corporation in invoking the action of the county commissioners, have undertaken, with the assent of the same corporation, and the concurrence of the common council, to nullify and defeat by their own act the proceedings which they had set in motion.

The order of the city council was therefore irregular, and liable to be avoided and set aside by writ of certiorari upon the petition, seasonably filed, of any party whose interests are injuriously affected thereby. Dwight v. City Council of Springfield, 4 Gray, 107. Any person whose property will be injured by the proposed change in the grade of the street, and who applies for relief before the order complained of has been so far executed as to affect the interests of other persons or of the public, is entitled to a decision of the court upon the question which of the two proceedings upon the subject is lawful and regular, in order that he may proceed in due form of law to secure his rights, by application for damages or otherwise.

As it appears that the petitioner owns an estate abutting on that part of Main Street the grade of which is proposed to be altered, and that no work upon that street has yet been done under the order of the city council, the

Writ of certiorari must issue.