City of Boston v. Boston & A.R. Co.

• Decision Date: 08 January 1898
• Citation: 49 N.E. 95,170 Mass. 95
• Parties: CITY OF BOSTON v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 95

49 N.E. 95

CITY OF BOSTON v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 8, 1898

COUNSEL

Samuel H. Child, for plaintiff.

Samuel Hoar, for defendant.

OPINION

KNOWLTON J.

This is an action to recover three assessments made upon portions of the roadbed of the defendant to pay the cost of public improvements near the premises upon which the assessments were made. The assessments were laid at different times under different statutes,--two of them to pay the cost of construction of sidewalks in public streets, and one to pay for the construction of a sewer. Although there is some diversity in the statutes under which the work was done, the general principles applicable to the different claims are the same. The making of such assessments is a form of taxation which rests upon the ground that the property in the neighborhood of a public improvement may receive special and peculiar benefits from the improvement, that make it equitable as against its owner, to charge it with the payment of a greater proportional part of the cost of the work than is paid by property owners generally. Dorgan v Boston, 12 Allen, 223; Harvard College v. Boston, 104 Mass. 470; Codman v. Johnson, Id. 491. It is well-established law in Massachusetts that the land of a railroad corporation lying within its location, not exceeding five rods in width, and used for the purposes for which the corporation is established, is exempt from taxation. Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564; City of Charlestown v. County Com'rs of Middlesex Co., 1 Allen, 199; Boston & M.R.R. v. Lowell & L.R. Co., 124 Mass. 368; Norwich & W.R. Co. v. County Com'rs, 151 Mass. 69, 23 N.E. 721. This rule is founded on the nature of the use for which the land is taken or purchased. The land is appropriated to a public use in much the same way as is a highway, or the land under a court house or school house or jail. Although the corporation is permitted to derive profit from it, this is incidental to the main purpose for which it is taken in the exercise of the right of eminent domain. The fundamental fact on which the rights of the corporation depend is that a public highway is being prepared for the use and convenience of all the people. The reason of the rule is as applicable to special taxation for local improvements particularly affecting only a small neighborhood near the railroad as to general taxation. It is that property held and used for the benefit of the public should not be made to share the burden of paying public expenses. The rule has often been applied to special taxation in this commonwealth, as well as to general taxation. Worcester Co. v. Mayor, etc., of Worcester, 116 Mass. 193; Mount Auburn Cemetery v. City of Cambridge, 150 Mass. 12, 22 N.E. 66; Harvard College v. Boston, 104 Mass. 470; Codman v. Johnson, Id. 491. The rule is different from that which applies to statutory exemptions of property in a scheme for general taxation, which are held to cover only taxes that are assessed under and in accordance with the scheme created by the statute. Boston Seamen's Friend Soc. v. City of Boston, 116 Mass. 181; Worcester Agricultural Soc. v. City of Worcester, Id. 189. In cases of the latter kind, an examination of the statute to discover the intention of the legislature shows that the principal reasons for exemption do not extend beyond the system of general taxation with which the legislature is dealing. But the exemption of property appropriated to a public use is not founded upon an express provision of any statute, but rests upon general principles of propriety, justice, and expediency which are applicable alike to every kind of taxation. In Inhabitants of Worcester Co. v. City of Worcester, 116 Mass. 193, it was held that assessments made for betterments could not be laid upon the court house of the county and the lot on which it stands; and in Mount Auburn Cemetery v. City of Cambridge, 150 Mass. 12, 22 N.E. 66, a similar decision was made in regard to assessments upon land of a cemetery corporation to pay the expense of constructing a sewer. The general doctrine of these cases covers the case at bar. Similar decisions, varying somewhat in their facts and in the reasons on which they are said to rest, have been made in other states. City of Philadelphia v. Philadelphia, W. & B.R. Co., 33 Pa.St. 41; Morris & E.R. Co. v. Jersey City, 36 N.J.Law, 56; New Jersey R. & T. Co. v. City of Elizabeth, 37 N.J.Law, 330; New York & N.H.R. Co. v. City of New Haven, 42 Conn. 279; New York & H.R. Co. v. Town of Morrisania, 7 Hun, 652; Junction R. Co. v. City of Philadelphia, 88 Pa.St. 424; Allegheny City v. Western Pa. R. Co., 138 Pa.St. 375, 21 A. 763; Sweaney v. Kansas City Ry. Co., 54 Mo.App. 265; Chicago, M. & St. P. Ry. Co. v. City of Milwaukee, 89 Wis. 506, 62 N.W. 417; Detroit, G., H. & M. Ry. Co. v. City of Grand Rapids, 106 Mich. 13, 63 N.W. 1007; City of Bloomington v. Chicago & A.R. Co., 134 Ill. 451, 26 N.E. 366.

It remains to consider certain special provisions of the different statutes under which the assessments in this case are made. The assessment described in the first part of the agreed statement of facts was for the construction of a sidewalk under St.1892, c. 401. Section 2 of this chapter is as follows: "Any expenses incurred for any work so ordered and performed shall be paid out of the moneys appropriated under the provisions of section 1 of chapter 323 of the Acts of the Year 1891, and shall be repaid to said city as the assessable cost of the work by the owners of the several parcels of land bordering on the part of the highway along which the sidewalk is made: provided, however, that if any such parcel is devoted to public use, said city may assume and pay the whole or part of the amount assessed thereto, if said city deem proper so to do." It is contended that the language of the proviso is a legislative declaration that all lands devoted to a public use are assessable under this statute. We are of opinion that it was not the intention of the legislature by this statute to change the general provisions of law applicable in like cases to lands used by counties, cities, towns, and railroad or other corporations for a public use, in such a sense that the lands could have been taken for that use by right of eminent domain. There are several provisions of the statute which would be inapplicable to such lands. In the first place, a lien is created upon the lands for the amount assessed, and the assessment may be collected by a sale of the property. But such property is so held and used that a sale of it would be inconsistent with general principles of law, and with the statutes under which it was acquired. The provisions...