Hall v. Street Commissioners of Boston

Decision Date04 January 1901
PartiesHALL v. STREET COMMISSIONERS OF BOSTON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Walter N. Buffum, for petitioner.

Thomas M. Babson, for defendants.

OPINION

HOLMES C.J.

This is a petition for a writ of certiorari to quash a sewer assessment laid under St. 1899, c. 450, § 3, which took the place of St. 1897, c. 426, § 7, declared unconstitutional in Sears v. Commissioners, 173 Mass. 350, 53 N.E. 876.

The act of 1899, in the first part of section 3, enacts that the board of street commissioners, 'at any time within two years after any new sewer or drain * * * is completed, shall assess upon the several estates especially benefited by such sewer or drain a proportional part of the cost thereof, not exceeding in amount the sum of four dollars per linear foot,' and goes on to provide for a reassessment of any such assessment which shall have been found to be invalid and is unpaid, or which shall have been recovered back. This act took effect June 1, 1899. The sewer in question was built under an order of August 5, 1897, the work being finished on April 5, 1898. There was an old sewer in the street, but it was on the other side, no part of it was used in the new construction, and it fairly is to be taken from the respondents' answer that they found it broken down and useless.

It is objected to the assessment that the sewer was not a new sewer, that the act does not apply to a sewer already built and that if it does it is unconstitutional for that and other reasons. It is objected, further, that the answer does not show that the petitioner has not paid for the sewer within a proviso further on in the section; but this and some other objections go on the footing that the action of the board in this case is to be referred to a later power to 'assess upon any estate heretofore or hereafter connected with a public sewer a reasonable part of the cost of construction thereof,' subject to the proviso just referred to. As we are of opinion that the board acted under the words first quoted from the beginning of the section, and not under this later power, we shall say no more about these other objections, beyond adding that, so far as they go on a failure of the answer to state matters obviously true with technical fullness, we should not grant a certiorari on that ground.

We are of opinion that the sewer was a new sewer within the meaning of the act, and that it is sufficiently shown to have been so by the facts which we have stated. The suggestion that it is not a new sewer seems to have been an afterthought, and contrary to the purport of the petition. In view of our opinion on this point, and of the fact that the words of the act which we shall discuss require a new sewer, it is unnecessary to consider whether the legislature would not have had power to authorize an assessment for reconstructing an old sewer or a new part of an old system. See Sears v Commissioners, 173 Mass. 350, 53 N.E. 876; Carson v. Same, 175 Mass. 242, 56 N.E. 1, 48 L. R. A. 277.

We are of opinion, in the next place, that this sewer is within the words first above quoted from the act. It is true that the words, 'within two years after any sewer is completed,' taken by themselves, would seem to refer to a completion in the future. But we have to consider the whole section and the circumstances. Later on, as we have said there is a general power to assess upon any estate heretofore or hereafter connected with a sewer, about which we say nothing except that it shows that the legislature had past work in its mind. But what is more important is that the section is enacted to replace the one which was held unconstitutional by this court, and its whole frame shows that it was intended, among other things, to enable the city to collect the special assessment which it had failed to get under the earlier act. Indeed, this is the petitioner's argument, although aimed at a different conclusion. Taking this into account, and also that the section which we are construing was passed as an amendment to the act of 1897, we are of opinion that the words embrace at least sewers completed after the act of 1897 went into effect. We are not laying down a general rule of construction for amendments, but simply are construing this particular act as we think that the legislature meant it to be construed. No doubt if the amendment in a new clause not repeated from the amended section had read, 'is hereafter...

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