Corcoran v. Board of Aldermen of City of Cambridge

• Decision Date: 20 May 1908
• Citation: 85 N.E. 155,199 Mass. 5
• Parties: CORCORAN et al. v. BOARD OF ALDERMEN OF CAMBRIDGE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 5

85 N.E. 155

CORCORAN et al. v. BOARD OF ALDERMEN OF CAMBRIDGE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1908

COUNSEL

Edmund M. Parker, for petitioners.

Gilbert A. A. Pevey, for respondents.

OPINION

KNOWLTON C.J.

This is a petiton for a writ of certiorari to quash an assessment of the expense of watering streets in the city of Cambridge made under Rev. Laws, c. 26, §§ 26, 27. The most important question in the case is whether the statute is unconstitutional, because it gives the owner of the property assessed no opportunity to be heard in regard to the assessment. If no such opportunity is secured to him by the statute it is invalid, as an attempt to take his property without due process of law. Sears v. Street Commissioners, 173 Mass. 350-355, 53 N.E. 876, and cases cited. See, also, Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443; Adams v. Roanoke, 102 Va 53-63, 45 S.E. 881. But if the right to a hearing is given upon an appeal, or upon an application for an abatement, it is sufficient. Sears v. Street Commissioners, ubi supra, and cases cited.

In section 27 this statute specifies particulars in which the assessment is to be like the annual tax upon property, and declares that it 'shall be a part of the tax for that year on such estate.' Then follows this provision: 'But the assessors shall make no abatement thereof except upon the recommendation of the board or officer by whom the list was certified to them.' In this it is assumed that, as in the case of other taxes upon property, there is a right to apply to the assessors for an abatement. Their right to grant the abatement is limited by the requirement of a recommendation from the board or officer who certified the list on which the assessment was founded. That the landowner has a right to apply for an abatement, and that the assessors have a right to grant it, upon this recommendation, is as plain as if it were stated expressly, instead of being implied unquestionably. That the board or officer may make such a recommendation is included in the provision, and this also includes a right on the part of the landowner to apply for the recommendation, and to present his reasons for asking for it. We interpret the statute as giving him this right, and including an official duty on the part of the board or officer to hear him and pass upon the merits of his claim and give him the recommendation for an abatement, if it appears that the tax or any part of it was improperly assessed. While the statute is not explicit in stating particulars, it plainly implies all that is necessary. It has been before the court three times, and in two cases it was expressly held to be constitutional, although this question was not raised by counsel nor considered by the court. Sears v. Alderman of Boston, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834; Ward v. Newton, 181 Mass. 432, 63 N.E. 1064; Hodgdon v. City of Haverhill, 193 Mass. 327, 79 N.E. 818. The statute, with an amendment applicable only to the city of Boston, was considered further in Stark v. City of Boston, 180 Mass., 293, 62 N.E. 375. This amendment provides for a division of the territory of the city into districts, and gives persons aggrieved by a charge for watering streets a right to apply to the board of street commissioners for an abatement. The assessment upon each estate is made by the assessors. As the application for an abatement is to a different board from that which assessed the tax, there is a direction that they shall consider the assessment, and abate it if it is unreasonable, and that the treasurer of the city shall repay the amount abated if it has been collected. As to the particulars of the application and the hearing little more is stated than is necessarily included in the implication of Rev. Laws, c. 26, § 27. We are of opinion that the section just cited gives persons assessed the right to be heard before the assessors upon an application for an abatement, and a right also to be heard upon all questions affecting the validity and amount of the assessment, upon an application for a recommendation to the board or officer who certifies the list to the assessors, and that it is the official duty of such board or officer to give a recommendation, if, upon hearing, the assessment seems to be unwarranted or excessive. In this respect the statute meets the requirements of the Constitution.

It appears that one of the petitioners is the owner of a parcel of vacant, unimproved land, upon which a tax for watering streets to the amount of $19.84 was assessed. If application had been made to the assessors for an abatement and to the superintendent of streets for a recommendation, the petitioner would have been entitled to have this tax abated. It is contended that the assessment upon all the abutters in the city should be quashed because of this erroneous assessment.

In Sears v. Aldermen of Boston, 178 Mass. 71, 53 N.E 138, 43 L. R. A. 834, in Stark v. City of Boston, 180 Mass. 294, 62 N.E. 375, in White v. Gove, 183 Mass. 336, 67 N.E. 359, and in Chenery v. Beverly, 188 Mass. 84, 74 N.E. 306, the subject of the assessment at a certain rate per front foot of lands abutting on a street was considered. In these, and in numerous other cases, it is held that special taxation of this kind in substantial excess of the special benefits received is illegal. In the first two of these...