Dickinson v. City Council of Worcester

Field, J. This cause was reserved upon the petition, answer, and certain evidence which has been reported. The allegations of the answer, in addition to the record, if the answer be regarded not only as a certificate of the doings of the city council not formally appearing of record; but also as a pleading alleging facts which are extrinsic to the records and doings of the city council, and which tend to show that substantial justice has been done, must, upon a reservation upon the .petition and answer, be taken to be true, except so far as the case is reserved upon evidence relating to such allegations of fact in the answer. This disposes of some of the questions argued by the petitioner. It appears by the answer, that the expenditures for “cross walks, flagstones, return curbstones, and short corners,” a proportion of which has been assessed upon the petitioner, were incurred for materials used in making a driveway for the petitioner across the sidewalk, which was a part of the sidewalk, and not for materials used in any work done upon the street as distinguished from the sidewalk, or for curbstones which define the edge of the sidewalk on the street. The provisions of e. 9, § 3, of the ordinances of the city of Worcester requiring the commissioner of highways to make or cause to be made a full and particular estimate of the expense [561] of the proposed work, and of the damages to abutters, or others, and to make plans and report them with his estimate to the city council, we regard as directory. Lowell v. Hadley, 8 Met. 180. The answer denies “ that said assessment upon the petitioner is greater than his just and proportionate share of the expense of constructing said sidewalk.” There is no evidence that the proportion is greater than is just, unless the expenses must be assessed according to the length of the sidewalk abutting on the adjoining estates, and there is no such absolute rule of law. The expense of paving the sidewalk adjoining one person’s land may for many reasons be greater or less per linear foot than the expense of paving the sidewalk adjoining his neighbor’s land. It further appears by the answer, that the only filling and grading done was done for the purpose of making the grade of the sidewalk conform to that of the street as established by the county commissioners. The principal question is whether the expenditures for earth, gravel, and planking, which were necessary in order to construct the sidewalk to the grade of the street, are expenditures a proportion of which can be assessed upon the petitioner. The city council accepted the St. of 1869, c. 390, and subsequently passed an ordinance, which is c. 41 of the ordinances of the city of Worcester ; the second and third sections are as follows: “ Section 2. When any sidewalk shall have been laid out and established as aforesaid, the commissioner of highways, under the direction of the committee on highways and sidewalks, shall grade the same, set the curbstone, pave the gutters, and construct said sidewalk of such material as . the city council shall deem expedient. It shall be the duty of said commissioner to keep an exact account of all expenses and outlays required or incurred by him in constructing each sidewalk abutting upon any estate, and report the same in writing within thirty days from the completion of the same, with the names of persons chargeable with the whole or any part of such expense,, to the auditor, who shall at once report the same to the city council, and they shall forthwith proceed to assess upon the owners of the several estates abutting upon said sidewalks their just [562] and proportionate part of the expense of paving said walk. Said report' shall contain in separate items the expense of paving the gutters, setting the curbstone, and paving the walk. “ Section 3. The expense of constructing or repairing any • sidewalk laid out and established as aforesaid, or any sidewalk heretofore established in the city of Worcester, shall be assessed upon the abutters, but no part of the expense of grading the street, setting the curbstone, or paving the gutters shall be so assessed, but shall be paid for by the city.” The statute provided that the city council “ may assess upon the abutters on such sidewalks the whole or any part of the expense of the same, that portion of the expense not so assessed being paid by said city.” St. 1869, c. 390, § 1. The ordinance is in the nature of a general rule adopted by the city council for making these assessments. The construction we give to this ordinance is, that only a proportionaté part of the expense of paving the sidewalk can be assessed upon the owners of the several estates abutting upon it, and that this includes “no part of the expense of grading the street, setting the curbstones, or paving the gutters.” Sidewalks are a part of the street, although the word “ street ” is sometimes used to denote that part of the street which is devoted to carriage travel. The second section of the ordinance provides that the commissioner of highways under the direction of the committee on highways and sidewalks shall grade the sidewalk, set the curbstones, pave the gutters, and construct the sidewalk of such material as the city council shall deem expedient. When this is considered in connection with the subsequent provisions, we think it is manifest that the city council, in providing that no part of the expense of grading the street shall be assessed upon abutters, intended to provide that no part of the expense of grading the sidewalk as a part of the street shall be- assessed upon abutters. By “ curbstones and gutters ” in the ordinance are meant the curbstones and gutters which lie between the sidewalk and the part of the street devoted to carriage travel. The remaining expenses of constructing the sidewalk, which would be" the expense of paving it, are to be assessed upon the abutters, a just and proportionate part to be assessed upon each. A [563] violation of the ordinance of the city in making the assessment, if it be assumed, as has been assumed by both parties, that the ordinance is valid, is a violation of law in making the assessment. Lowell v. Wheelock, 11 Cush. 391. The order directs the commissioner of highways to “ construct the sidewalk with good hard-burnt paving brick, or other good material,” and it has been argued that the order is not in compliance with the ordinance, which provides that he shall “ construct said sidewalk of such material as the city council shall deem expedient.” See Lowell v. Wheelock, ubi supra. But no such complaint appears in the petition, and we have not considered it. It appears by the answer, that the assessment upon the petitioner was made up of eleven items, which constituted the expenses of constructing the sidewalk along the petitioner’s land. This is a legal method of ascertaining the amount of the assessment, if all the items were properly included; but the fifth, sixth, ninth, and tenth items should not have been included, as they relate to the grading of the sidewalk. These items amount to $71.22, and the assessment should therefore be reduced to $428. Acting under the power conferred by the Pub. Sts. a. 186, § 9, a writ of certiorari should issue to bring the proceedings of the city council before the court sitting for the county, that a decree may be entered that the said assessment be the sum of $428, instead of $499.22, and that the proceedings of the city council as thus amended be affirmed. So ordered.