Brimmer v. City of Boston

Morton, J. In laying out ways within the city of Boston, the board of aldermen have similar powers, and perform like duties, as are exercised and performed by the county commissioners in the other counties of the state. Gen. Sts. c. 43, § 77. In the exercise of these powers and performance of these duties, they act, not as officers or agents of the city, but as public officers, vested with quasi judicial functions, and deriving their power from the sovereign authority. The board of aldermen and common council, in laying out and constructing ways, are not subject to the direction or control of the inhabitants of the city, but are an independent board of public officers, vested by law with the control of all matters within their jurisdiction, and performing duties imposed by general laws. Harrington v. Harrington, 1 Met. 404. Child v. Boston, 4 Allen, 41. Griggs v Foote, Ib. 195. The laying out, establishing and constructing the way is the act of the state, in the exercise of the right of eminent domain. This sovereign power of appropriating private property for public uses cannot be destroyed or abridged by the acts of any individual or corporation: It is obvious, therefore, that the stipulations and covenants of the city of Boston, contained in the indenture executed in 1830, whatever may be their construction or character) cannot operate to defeat or abridge the power of the public to appropriate the dock of the plaintiffs, or any part of it, to public uses as a highway. If they are to be construed as claimed by the plaintiffs, they cannot have the effect to defeat the rights of the public, or to excuse the city from its duty to construct the way. The plaintiffs hold their estate subject to the liability, which attaches to the property of every individual in the community, to be taken and appropriated for a public use; and the fact that they hold it under a covenant of quiet enjoyment, entered into by the city of Boston in its capacity as a municipal corporation, cannot create in their favor an exemption from this common liability. It is urged by the plaintiffs, that the city should be restrained from entering upon their dock for the purpose of constructing [23] Atlantic Avenue, because it is laid out over navigable waters. The St. of 1867, c. 324, confers upon the board of aldermen the power to lay out this street over tide waters, and we can see no force in the argument that this act is unconstitutional as being in violation of, or authorizing the violation of, the obligations of the contract entered into by the city. The act, construed in connection with the existing laws in respect to laying out highways, makes full provision for compensation for all property or rights taken for public use. It does not impair the obligation of the contract of the city; it recognizes the contract, and the rights of the plaintiffs under it, and provides indemnity for those rights, if appropriated to a public use, Central Bridge Co. v. Lowell, 4 Gray, 474. Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co. 2 Gray, 1. Springfield v. Connecticut River Railroad Co. 4 Cush. 63. The plaintiffs ’also contend that the proceedings of the board of aldermen are illegal, because they did not, in their vote laying out the street and estimating the damages, state separately the share of each person who sustained damage by the laying out. But we are of opinion that this question is not open to the plaintiffs in this suit. The adjudication of the board of aldermen laying out a way cannot be impeached incidentally, for errors in the mode of proceeding not affecting their jurisdiction ; but the proper remedy is by a writ of certiorari, upon which the whole record will be certified to this court and a proper judgment can be entered, affirming or quashing their proceedings. Lowell v. Hadley, 8 Met. 180. Fitchburg Railroad Co. v. Boston & Maine Railroad, 3 Cush. 58. Nichols v. Salem, 14 Gray, 490. Durant v. Lawrence, 1 Allen, 125. Upon none of the grounds suggested by the plaintiffs are they entitled to the injunction as prayed for; and judgment must be entered sustaining the demurrer and Dismissing the bill.