The City of Lowell vs. Andrew C. Wheelock, 11 Cush. 391

Metcalf, J. It is necessary to the maintenance of this action, that the sidewalks, for the expense of which the defendant is called upon to pay, should be shown to have been established and constructed in strict conformity to law. And it is the opinion of the court that this is not shown by the agreed facts. It does not appear that the city council prescribed the materials of which these sidewalks, or either of them, should be built.

Yet the revised ordinances of the city, c. 17, § 4, require that every sidewalk, which that council may order to be constructed, shall be built of such materials as the said council may have prescribed; and the city charter (Si. 1836, c. 128, § 4) requires that the city clerk shall keep a journal of all their acts and proceedings. The proper evidence, therefore, of the official acts and proceedings of that council, is a copy of the record thereof in the clerk’s journal.

And an extract from that journal is inserted in the statement of facto agreed on by the parties, showing the action of the city council in the establishment of the sidewalks now in question. But it contains no order respecting the materials of the sidewalks. And we are not authorized to presume, nor has the plaintiffs’ counsel suggested, that any such order was ever passed. By reason of this defect in the proceedings of the city council, these sidewalks were not established and constructed according to law.

We are also of opinion that, for another reason, the sidewalk in Slackpole street, for the expense of which the defendant is shed, was not legally constructed. It was not made conformably to the order of the city council. Six feet in width, on both sides of that street, were set off and reserved for sidewalks, by that body. But the sidewalk in question, on the southerly part of the street, was not made six feet wide on the side of the street, but was made several feet from the side, leaving a part of the street on the outside of it.

Several other points of defence were taken by the defendant’s counsel, which we have not examined. Judgment for the defendant