Dorey v. City of Boston , 146 Mass. 336 ( 1888 )

C. Allen, J.

The defendant now contends, though the objection does not appear to have been taken at the trial, that the city is under no liability to pay the cost of sewers built by direction of the aldermen with the approval of the mayor. But this ground of objection cannot be maintained. Sewers are built at the expense of the city, in the first instance, and a portion of the expense may afterwards be collected from persons whose estates are benefited. Pub. Sts. c. 50, §§ 1-4, 11. Bennett v. New Bedford, 110 Mass. 433.

The ground of objection relied on at the trial was, that the plaintiff could not recover, unless the work of building the sewer was done by the superintendent of sewers, under the direction of the committee on sewers; and the court so ruled, holding that the order of the board of aldermen passed on January 21, 1884, superseded that of July 16, 1883. This ruling we think erroneous. The Pub. Sts. c. 50, § 1, authorize the mayor and aider-men of a city to lay, make, and maintain sewers. The St. of 1882, c. 164, enacts that the words “ mayor and aldermen ” shall be construed to mean “board of aldermen.” The city ordinance of 1883 provided for the annual choice of a superintendent of sewers, who should, under the direction of the board of aider-men, have the general supei-vision of all common sewers built and owned by the city, or permitted to be built or opened by its authority, and take charge of the building and repairs of such sewers, and make all contracts for the supply of labor and materials therefor. A superintendent of sewers was duly chosen, and on July 16, 1883, the board of aldermen passed an order that he be directed to construct a common sewer in Heath Street, and to report a schedule of the expense to the board. On January 21, 1884, the board passed another order “ that the superintendent of sewers be authorized, under the direction of the committee on sewers, to purchase materials and employ labor in the management of the sewer department during the present municipal year.”

The plaintiff’s testimony was to the effect that he did the work in building the sewer in Heath Street, for which he now seeks to recover, by the authority and direction of the superintendent of sewers, received August 25, 1884; and if the last mentioned order of the board of aldermen superseded the first in respect to the sewer in Heath Street, the superintendent’s power to act. alone was taken away. But the two orders may well stand together. In relation to the sewer in Heath Street, the board of aldermen acted specially, and authorized the superintendent to construct it. The later order was more general in its character, and apparently was intended to relieve the board of aldermen to some extent of the care and duty which otherwise would have rested upon them during the current year; but not to make it necessary to obtain the direction of its committee in reference to this particular sewer, which the board itself had ordered the superintendent to construct.

In this view, it is not necessary to consider whether the board of aldermen could lawfully delegate such power to its committee ; in respect to which see Day v. Green, 4 Cush. 433; Lowell v. Simpson, 10 Allen, 88; Birdsall v. Clark, 73 N. Y. 73; State v. Paterson, 5 Vroom, 163. New trial granted.