Dwight v. City Council of Springfield

70 Mass. 107

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1855
• Status: Published

Opinion

Dewey, J.

The decisions of this court, that a writ of certiorari will lie. to quash irregular proceedings of the mayor and aldermen of Boston in laying out streets or ways therein, furnish a sufficient precedent for a similar writ in cases of the location of streets and ways by the city council, in those cities the charters of which vest this power in the two branches of the city government, called the city council, as is the case in the city charter of Springfield. St. 1852, c. 94, § 14. Parks v. Boston, 8 Pick. 218. Stone v. Boston, 2 Met. 220. Robbins v. Lexington, 8 Cush. 293.

The petition of David Smith and others was limited to the extension of Willow Street northwardly from the intersection of Stockbridge Street to State Street. The petition of Charles Phelps and others, which contains a further prayer that Willow Street may be accepted and established as a public highway, throughout its whole length, from Union Street on the south to State Street on the north, was referred to the committee on streets, for the first time, after the order of notice had been issued on the first petition. That order therefore must have had reference solely to the petition of David Smith and others. The city council had no authority, upon that petition, to lay out Willow Street throughout the entire distance from State Street to Union Street. The location not being susceptible of division, and a part of it being void for the reason above stated, the whole must be quashed. Commonwealth v. West Boston Bridge, 13 Pick. 197.

There is no evidence of any such loches on the part of the petitioner as should estop him to maintain his petition.

Writ of certiorari ordered.