Edwards v. Bruorton

• Decision Date: 07 January 1904
• Citation: 184 Mass. 529,69 N.E. 328
• Parties: EDWARDS v. BRUORTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 529

69 N.E. 328

EDWARDS v. BRUORTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1904

COUNSEL

Olcott

O. Partridge, for plaintiff.

B. D Barker, for defendant.

OPINION

KNOWLTON C.J.

This is an action of contract for breach of a covenant in a deed. A public street called 'Jersey Street' was laid out by the street commissioners of Boston, over a part of the premises, under the authority of St. 1891, p. 880, c 323, and St. 1892, p. 444, c. 402, and other amendatory acts and the existence of this street constitutes a breach of the covenant in the deed if the statute gave the board authority to lay it out. It is contended that the statute is unconstitutional in two particulars: First, that it purports to authorize an assessment of the whole cost of construction as a betterment tax upon property benefited, without reference to the amount of the benefits; and, secondly, because in section 9 (St. 1891, p. 883, c. 323) it provides that no compensation shall be given for land taken for a street, if the owner, after the filing of a plan in accordance with the statute, shall erect any building within the boundaries of any way, and not remove it when required by the street commissioners. It is further contended that these unconstitutional provisions render the entire statute void.

It has been held repeatedly that the statute is unconstitutional in that part which directs an assessment upon abutters, because the assessments are to be made without reference to benefits received. Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124; White v. Gove, 183 Mass. 333, 67 N.E. 359; Harwood v. Boston Street Commissioners, 183 Mass. 348, 67 N.E. 362. The question now before us is whether this is a defect which renders the whole of the statute unconstitutional, or only that part of it which provides for the assessment. The general rule of law applicable to the question is familiar. It is that if the different parts of a statute are separable, so that the part which is unobjectionable can well stand alone, and if it is so far independent of the part which is unconstitutional that the Legislature presumably would have enacted it without the other if they had known that the other was unconstitutional, the act can be given effect in the part which is unobjectionable, and set aside only in the other part. If, on the other hand, the valid and invalid parts 'are so mutually connected with each other * * * as to warrant a belief that the Legislature intended them as a whole, and that if all could not be carried into effect the Legislature would not pass the residue independently, * * * all the provisions which are thus dependent must fall.' Fisher v. McGirr, 1 Gray, 1, 21, 61 Am. Dec. 381; Warren v. Charlestown, 2 Gray, 84; Com. v. Clapp, 5 Gray, 97-100; Com. v. Hitchings, Id. 482, 485, 486; Sparhawk v. Sparhawk, 116 Mass. 315-320; Nolan's Case, 122 Mass. 330; White v. Gove, 183 Mass. 333, 67 N.E. 359. The cases in which the doctrine has been applied are numerous, and some of them present difficulties of determination upon the question whether the valid and invalid parts of the statute are essentially and inseparably connected in substance. In statutes providing for the expenditure of money for the benefit of the public, containing an unconstitutional provision for raising money by taxation, it has been held in different jurisdictions that the invalid part may be disregarded, and the substantial part enforced, leaving payment to be provided for in a constitutional way. This was decided in Loeb v. Columbia Township Trustees, 179 U.S. 472, 21 S.Ct. 174, 45 L.Ed. 280--a case in which an avenue was widened under a statute providing that the cost should be assessed on the abutters, which was assumed to be unconstitutional in that particular. A similar application of the principle is found in Gordon v. Cornes, 47 N.Y. 608-617; Matter of Oneida Street, 37 A.D. 266, 55 N.Y.S. 959; Skaneateles Water Co. v. Skaneateles, 161 N.Y. 154-170, 55 N.E. 562, 46 L. R. A. 687; Sparrow v. State Land Office Commissioner, 56 Mich. 567-572, 23 N.W. 315; State v. St. Louis County District Court, 66 Minn. 161-165, 68 N.W. 860; Huntington v. Worthen, 120 U.S. 97-102, 7 S.Ct. 469, 30 L.Ed. 588; and People v. Knopf, 183 Ill. 410-422, 56 N.E. 155. A few of the analogous cases dealing with subjects other than taxation are Cole v. County Commissioners, 78 Me. 532-538, 7 A. 397; New England Engineering Company v. Oakwood Street Railway Company (C. C.) 75 F. 162-167, and Field v. Clark, 143 U.S. 649, 692, 697, 12 S.Ct. 495, 36 L.Ed. 294. Cases dealing with the general question, in which the whole statute was held void, are Warren v. Charlestown, 2 Gray, 84, 99, 100; Nolan's Case, 122 Mass. 330; Meshmeier v. State, 11 Ind. 482-485; Slauson v. Racine, 13 Wis. 398-404; State v. Montgomery, 94 Me. 192, 47 A. 165, 80 Am. St. Rep. 386; Copeland v. St. Joseph, 126 Mo. 417, 29 S.W. 281; and Reelfoot Levee District v. Dawson, 97 Tenn. 151, 36 S.W. 1041, 34 L. R. A. 725.

The cases first cited, in their application of the principle fully cover the case at bar. The defective part of the statute with which we are now dealing, relates only to the mode of taxation by which the money shall be raised to pay for the streets laid out and constructed. It provides an unconstitutional mode of special taxation. If that mode cannot be adopted, it is not to be presumed that the Legislature intended that no street should be laid out under the statute. If streets are needed and laid out, they can be paid for by general taxation, or a proper mode of special taxation can be prescribed. In this commonwealth it never has been held or intimated by the court that a defect in the mode of taxation prescribed for meeting the expense of constructing a street or sewer should render the whole proceeding invalid. The contrary has always been assumed. In Harwoood v. Street Commissioners, 183 Mass. 348, 67 N.E. 362, it was assumed in terms in reference to the statute now before us. See, also, Weed v. Boston, 172 Mass. 28, 51 N.E. 204, 42 L. R. A. 642; Hall v. Street Commissioners, 177 Mass. 434, 59 N.E. 68; Stark v. Boston, 180 Mass. 293, 62 N.E. 375. The constitutionality of the provision for the assessment...