Martin v. Hilb

Hemingway, J. The sewer district was organized at the instance of a majority in value of the property owners in the district, under the provisions of the act approved March 22, 1881. Section 873 of Mansfield’s Digest is a part of that act, and whatever conditions or restrictions it imposes were voluntarily assumed by the promoters of the organization in organizing the district and constructing the work. R<^iimngWadjaowners to°connect Provides that after the completion of any sewer authorized to be built under the provisions of the act, it shall be lawful for the board of health of the city, whenever in their opinion the public health will be promoted thereby, to order any one or more property owners near or adjacent to any sewer to construct upon their property sewers leading from some point on their premises to the sewer of the city for the purpose of conducting the sewage about such premises into the city sewers. The only conditions placed upon the exercise of this authority are, that, in the opinion of the board of health, the public health will be thereby promoted, and that their orders shall apply only to property owners near or adjacent to the city sewer. What is intended by property near or adjacent to the sewer is defined in a subsequent part of the act. Sec. 8/6, Mansf. Dig. There is nothing in the language or purpose .of the grant to limit its application to property situate within the district, or to exact a pre-payment from those to whom the order is directed of any part of the cost of the sewers. Whether the law requires that they do more than meet the expense of making the connection, we need not consider, for if any payment was required, it was not a condition precedent to a compliance with the order, and the fact that it had not been made would not entitle any one to ask that such compliance be enjoined. The legislature, seeming to doubt whether the law contemplated any such payment on the part of those to whom the order should be directed, subsequently amended it, so as to remove the doubt. Acts 1889, p. 18. Having reached the conclusion that no relief could be granted upon the case made, we have not considered the question of practice argued by counsel. The judgment will be affirmed.