Bennett v. City of New Bedford , 110 Mass. 433 ( 1872 )

Colt, J.

The plaintiffs, citizens and tax payers of New Bed-ford, allege that the officers of that city are proceeding to construct an aqueduct for the purpose of diverting the water of a certain brook into it, intending also to use it as a common sewer ; and that this work requires a large expenditure of money, which must eventually come from the taxable inhabitants, and is undertaken without authority of law. An injunction is asked to restrain the further progress of the work.

The answer denies the equity jurisdiction of the court in this case, and avers an existing necessity for the sewer in question, and the legality of the proceedings under which it is constructed,

It is not necessary to consider the question of jurisdiction, because we find nothing in the case to invalidate the proceedings of the city as against those whose private rights of property are not affected and whose only interest is that of tax payers.

The city charter, St. 1847, c. 60, § 14, provides that “ the city council shall have authority to cause drains and common sewers to be laid down through any street or private lands.” An ordinance of the city requires that “ the mayor and aldermen shall cause to be constructed and kept in repair all main drains and common sewers which shall be ordered by the city council to be laid down through any streets or private lands within the city.” On June 6, 1872, it was ordered by the common council that a special appropriation of a sum named in the order be made “ for the purpose of constructing a sewer through Willis Street, commencing at the brook west of County Street, and continuing to the river. Also for the continuation of Sycamore Street sewer from Pleasant Street to enter into the Willis Street sewer.” And the committee on finance were authorized to raise the sum named in such manner as they might deem for the best interest of the city. This action of the common council was sent up for concurrence, and was concurred in by the board of aldermen on the same day, and the construction of the sewer was subsequently ordered by them.

It is objected that this vote is not sufficiently specific and definite for the legal location of a sewer. It is indeed in the form of an appropriation of money, but we think it sufficiently shows an intention to establish the sewer in question, and sufficiently defines its location; no set form of words is required, and the purpose could not be more plainly stated, if the vote had been divided into one making a location and another an appropriation for it.

It is also objected that the order was passed in violation of the rules and orders of the common council which require that votes of this description shall have two several readings on different days, and may be reconsidered at the same meeting in which they are passed or at the next meeting after; and that the vote in fact was reconsidered at the next meeting. But the answer to this is that the rules referred to are rmes governing the order and routine of business, intended as securities against hasty and inconsiderate action, which, in every deliberative body, acting within the powers conferred, may be abolished, modified or waived at will. It is essential that the vote of June 6 should appear to have been treated as the final action of the board, and this is shown by the fact that it was then adopted and sent up to the aldermen for concurrence. This is evidence that the requirements relied on were waived by the authority which imposed them. And the objection cannot be made by these parties effectual to defeat its action. Cooley on Const. Limit. 131.

Nor is it any objection that the work to be done may create a city debt, and that no debt, by the joint rules and orders of the city government, can be- created but by joint resolution and by yea and nay vote of two thirds in each branch, for, in addition to the reasons above given, it is sufficient that every reasonable presumption must be made in favor of the legality of the action of the city government in the performance of its functions, and there is nothing to show affirmatively that the vote in question was not passed in conformity to the rules.

The proposed use of this structure for conducting of the waters of a natural stream does not change its character as a common sewer; one appropriate use of which may be to relieve from the natural as well as the surface flow of water.

Bill dismissed, without costs.