Borden v. City of Brockton

94 N.E. 558, 208 Mass. 348, 1911 Mass. LEXIS 829

Opinion

Loring, J.

It is not stated in the agreed facts that R. L.

c. 49, §§ 42-44, or any of the earlier acts therein referred to, had been accepted by the city council of the defendant. But in the plaintiff’s argument it is expressly conceded that each of these sections had been so accepted. The mayor and aldermen of the defendant city (having the powers of selectmen of towns, St. 1881, c. 192, § 1) could have ordered the construction of the sidewalk here in question under the power given by R. L. c. 48, § 65, to order specific repairs. If the order had contained a statement that in their judgment public convenience required the building of the sidewalk, it would have been apparent that they were acting under one of the three systems of sidewalk assessments set forth in R. L. c. 49, as to which see Copeland v. Springfield, 166 Mass. 498. But in the absence of those or other words showing that they were acting under an assessment act, it is not apparent whether the order was made under the act as to specific repairs or under an assessment act. Under those circumstances such an order as we have here is not the foundation of an assess- . ment, and it is not necessary to consider whether the order should have contained the statutory words had one of the assessment acts been the only act under which the order could have been made.

Judgment on the finding.