187 Mass. 451 | Mass. | 1905
This is a petition for a writ of certiorari to quash an assessment of betterments, made under the St. 1896, c. 516, on account of the location and construction of Summer Street and Cove Street and the south terminal station in Boston, under the requirements of this statute. It comes before us on a report by a single justice, and the principal questions are whether the expenditures were made in violation of statutes under which the work should have been done, in order to lay the foundation for an assessment, and whether the provision for the assessment is unconstitutional. The contention is that this statute, by implication, required the work of construction of these two streets to be done in the same way as if they had been laid out under the St. 1891, c. 323, sometimes called the board of survey act, as amended by the St. 1892, c. 418. If the work had been done under this amended statute, the superintendent of streets, as an officer in charge of a department of the city, would have been acting subject to the provisions of the St. 1890, c. 418, §§ 4-6, and a disregard of these provisions might defeat the right of assessment. Warren v. Street Commissioners, 181 Mass. 6. But the statute under which the city was acting in the
Nothing is said in the statute in regard to the manner of
The work has been done by the city through its representatives, and paid for by it. From the averments of the petition, and from other parts of the record, although it does not appear in the answer, we infer that' the statute last mentioned was not treated as applying to this work. It is a long time since the streets were completed. Assessments have been made on account of the improvements, amounting in the aggregate to almost one million dollars, and most of them, presumably, have been paid. After this lapse of time, with an apparent general acquiescence in the construction put upon this part of the statute by those acting openly under it, we ought not to read into it a meaning which would invalidate the assessment, unless such a meaning is plainly discoverable in its language. We are of opinion that the Legislature did not intend to prescribe any particular mode of doing the work on these streets, as a condition precedent to the right to assess a part of the cost upon estates benefited.
With this view of the law, we need not consider other questions argued in connection with the motion for a further return by the respondents. If there was an irregularity in including in the first instance a part of the expense of the construction of sewers, the amount included was not so large as the amount afterwards deducted, and it does not invalidate the assessment.
Petition dismissed.