The opinion
Bigelow, C. J.
The petitioners are not entitled to a writ ot certiorari to quash the proceedings set out in their petition.
The informality in addressing the petition to the common council, as well as to the mayor and aldermen, if it be one, has been waived by the petitioners. In the first place, in the original proceedings it was treated as a petition addressed only to the mayor and aldermen; it was acted on by them, without sending it to the council for their concurrence, by referring it to *19 a committee of their own board only; thaf committee considered it and made a report to the mayor and aldermen, by whom it was accepted. It was therefore regarded as an application solely to the legal discretion of that board, and the address to the council was considered as a mere unimportant irregularity, which might be rejected as surplusage. After such action by the mayor and aldermen, who are the legal agents and representatives of the city in such matters, and after the long delay, during which the case has passed through various stages, it is too late now for the petitioners to insist on this technical irregularity as a ground for vacating the proceedings.
But in the next place, it seems to us that this case comes within the principles settled in Flagg v. Worcester, 8 Cush. 69 . The commissioners had full jurisdiction of the subject matter of the petition. The defect relied on is not that the case was not one which came within their cognizance, but only that they had no authority to act in this particular case, because some previous step in the proceedings had not been properly taken. That was the precise objection in Flagg v. Worcester, which was held to have been waived, because it was not taken in an early stage of the proceedings before the commissioners. The case is unlike that suggested in Whately v. County Commissioners, 1 Met. 336, 342 , in which a case is supposed by way of illustration where a petition to the commissioners stated on its face such facts as to show that it was one over which they had no jurisdiction to act at all. Petition dismissed.