Carr v. Dooley

Morton, J. The mayor and aldermen laid out and made the Cedar Street sewer under the St. of 1869, e. Ill, the first section of which provides that “ the mayor and aldermen of any city, and the selectmen of any town, may lay, make and maintain all such main drains or common sewers as they shall adjudge to be necessary for the public convenience or the public health, through the lands of any persons or corporations.” The defendant contends that this gives the power to make drains or sewers only “ through the lands of any persons or corporations,” and therefore that the mayor and aldermen of Lowell had no authority to make a sewer in a public street. But such could not have been the intention of the Legislature. The St. of 1869 was intended as a substitute for the Gen. Sts. c. 48, §§ 1-3, the purpose being to confer upon all cities and towns the additional right of laying drains through private lands as well as in the public streets. Construing the statute in view of the subject matter and the known public necessities and usages in regard to it, it is clear that such was the intention and purpose of the Legislature. This construction was adopted in Woodbridge v. Mayor § Aldermen of Cambridge, 114 Mass. 483, and in Carr v. Dooley, 119 Mass. 294. The point was not raised in those cases, but both court and counsel assumed this to be the true construction. The mayor and aldermen of Lowell, therefore, had authority to lay the sewer in question, and to make the assessment upon the plaintiff’s land, under the Gen. Sts. e. 48, §§ 4, 5, which, by the last section of the St. of 1869, “ apply to the laying out of sewers and drains under this act.” St. 1869, c. 111, § 4. 258 The defendant also objects that the assessment was illegal because the sewer was built of “cement drain pipe” instead of brick or stone, and because the vote of the mayor and aldermen, laying it out, does not specify the materials of which it was to be built. Neither of these objections can prevail. The Gen. Sts. c. 48, § 9, providing that all sewers shall be made with brick or stone, or such other materials as the selectmen of the town shall permit or direct, apply only to towns. The power to lay and make drains, given to the mayor and aldermen of a city by the St. of 1869, involves the power to determine the size, materials and mode of construction. And it is not necessary to the validity of their action, that there should be a formal vote specifying the materials. This sewer was built under the orders of the mayor and aldermen, and accepted by them. Like many other ministerial duties of the officers of cities and towns, the orders as to the materials and other details of construction may be made without a recorded vote. Exceptions overruled.