Hanlon v. Rollins

• Decision Date: 25 May 1934
• Citation: 190 N.E. 606,286 Mass. 444
• Parties: HANLON v. ROLLINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 444

190 N.E. 606

HANLON

v.ROLLINS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 25, 1934.

Report from Supreme Judicial Court, Norfolk County.

Petition by Catherine C. Hanlon for a writ of mandamus against J. W. Rollins and others. On report.

Petition dismissed.

M. Michelson, of Boston, for petitioner.

L. Bryant, of Boston, for respondents.

RUGG, Chief Justice.

This is a petition for a writ of mandamus. It comes before us by report upon the petition and answer for the determination of the full court. The material facts set forth in the petition and not denied by the answer and the material facts set forth in the answer must be accepted as true and be made the basis of the decision. There is no dispute as to the facts material to this decision.

By the decision in Mullen v. Board of Sewer Commissioners of Milton, 280 Mass. 531, 182 N. E. 641, rendered in October, 1932, a sewer assessment levied by the sewer commissioners of the town of Milton (pursuant to St. 1895, c. 304, and acts in amendment thereof) was held to be illegal because there were included as its basis, in addition to the cost of the local sewerage system, payments made by the town to the Commonwealth for the metropolitan sewerage system for the purpose of sewage disposal for the town. Such payments for the cost of the metropolitan sewerage system were held to be not lawfully assessable under the controlling statutes. The order of the court in that case was that so much of the record of the assessment as related to the inclusion of the cost of the metropolitan sewerage system was quashed and the remainder of such assessment was to stand provided such separation in the assessment affecting the petitioner in that case could be made as a practical matter; if such separation could not practicably be made, the entire assessment respecting the petitioner was quashed. It is stated in the answer of the respondents that an order was entered in that case by consent of counsel to the effect that the separation could not be made as a practical matter and that therefore the assessment was quashed. The respondents state in their answer that the figures showing the cost of the local system and the cost of the metropolitan system were included in the record in the Mullen Case and were before the court, together with other figures showing in detail the manner in which the assessment had been made. An examination of the original papers confirms this statement. It there appears that the total cost of the local sewers of the town was $505,870.04, and the total cost for sewage disposal by payments by the town for the metropolitan sewerage system was $504,584.36. Thereafter there was enacted St. 1933, c. 37, entitled ‘An Act to enable the town of Milton to repay in part certain sums paid as sewer assessments.’ Section 1 of that act is in these words: ‘The town of Milton may repay after determination by its board of sewer commissioners in accordance with the principles laid down by the supreme judicial court in the recent case of Annie F. Mullen v. Board of Sewer Commissioners of Milton, such parts of amounts assessed under the authority of chapter three hundred and four of the acts of eighteen hundred and ninety-five, and any acts in amendment thereof and in addition thereto, upon estates and owners in respect to sewer construction in the calendar years of nineteen hundred and twenty-seven to nineteen hundred and thirty-one, inclusive, which have been paid, as would not have been assessed in case assessments upon said town on account of the south metropolitan sewerage system had been excluded.’ The act was duly accepted by the town as provided in section 3.

This is a petition by a landowner who before the decision of the Mullen Case had paid the sewer assessments as originally levied. The respondents have proceeded in performance of the duties reposed in them by section 1 of said chapter 37. The petitioner contends that they have proceeded upon an erroneous construction of that section. The contention of the petitioner is that the respondents, in pursuance of their duties under the act, ‘should deduct from the amounts paid by abutters the excess which has been paid on account of the inclusion of payments to the Metropolitan sewer district in the basis of the assessment levied upon them,’ that practically the repayment to abutters would be approximately fifty per cent of the assessments paid, and that the total amount thus to be repaid would be approximately $55,000. The respondents in fact have calculated and determined ‘the amounts which would not have been assessed in case assessments upon said Town on account of the south metropolitan sewer system had been excluded’ by assuming ‘the cost of the system to be as defined in the opinion’ in Mullen v. Board of Sewer Commissioners of Milton, 280 Mass. 531, 182 N. E. 641, ‘and have made calculations in the manner set forth’ in St. 1895, c. 304, § 9; and, as authorized by said section 9, ‘have allotted as payable by the Town twenty-five percent of said total cost, and as payable by ‘the owners of estates situated within the territory embraced by it (the sewer) and benefited thereby,’ the ‘remaining cost,’ to wit, seventy-five percent, all in the manner approved' in Mullen v. Board of Sewer Commissioners of Milton, 280 Mass. 531, 182 N. E. 641, and ‘have determined that the differences between assessments calculated in such manner,...