City of Lowell v. Wentworth

Metcalf, J. We are of opinion that the judge rightly ruled, at the trial, that the defendant was entitled to a verdict. The seventeenth chapter of the city ordinances, § 4, requires that the superintendent of streets shall “keep an exact account of all expenses incurred in building a sidewalk, and report the same, in writing, to the auditor of accounts, with the names of the persons owning estates adjoining the sidewalk, and chargeable with any part of such expense, and also the length of the sidewalk adjoining each estate.” And the auditor, on receiving such report, is required to give immediate “ notice in writing to each person, who shall have been reported to him as liable to be assessed, of his intention to make an assessment, ten days at least before making the same, appointing in said notice a time and place at which all persons interested may appear and be heard in relation to said assessment.” This is a condition precedent to the validity of the assessment. But this condition was not complied with by the auditor, in the present case. All the owners of estates adjoining the sidewalk, except the defendant, received notice of a time and place at which they might be heard, and the defendant afterwards received notice of another time at which he alone might be heard. This was not the appointment of a time and place at which all persons interested might appear and be heard, as the ordinance directs. Nor was it a mere omission to comply with the letter of the ordinance. It was a departure from its spirit and purpose. The evident purpose of the notice is, that each proprietor of an estate adjoining the sidewalk may have an opportunity to be- heard as to his just proportional share of the expense of building it. A certain sum is to be assessed on a certain number of proprietors, according to the extent and value of their respective estates. Each is interested in the amount to be assessed on all the others, and each should have opportunity not only to make suggestions and proofs respecting his own estate, but also to hear and reply to the suggestions and proofs of all others respecting theirs. Other objections were made to the assessment. But as [223] we deem the one already mentioned as conclusive in the defendant’s favor, we express no opinion on either of the others. Exceptions overruled.