Harwood v. Charles

• Decision Date: 22 May 1903
• Citation: 67 N.E. 362,183 Mass. 348
• Parties: HARWOOD v. CHARLES et al., Street Com'rs.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 348

67 N.E. 362

HARWOOD v. CHARLES et al., Street Com'rs.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1903

COUNSEL

Wilfred Bolster, for petitioner.

Thos M. Babson, City Sol., for defendant.

OPINION

KNOWLTON C.J.

This is a petition for a writ of certiorari to quash an assessment for the construction of a street, with a sewer running through it, under St. 1891, p. 886, c. 323, as amended by St 1892, pp. 468, 469, c. 418. The assessment was made on January 8, 1900 the order of construction having been made on September 7, 1895, the work of the sewer having been begun on September 30, 1895, and finished on June 1, 1896, and the work of the street having been begun on October 5, 1896, and finished on June 1, 1897.

In Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124, this statute, in that part which provides for assessments upon land of abutting owners, was held to be unconstitutional inasmuch as it directs the assessment of the whole cost of the street and the sewer upon the abutters, without reference to the benefits which they receive, even if the cost is much greater than the amount of the special benefits to the abutting property. It is contended that the decision of the Supreme Court of the United States in French v. Barber, etc., Asphalt Paving Company, 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, should induce us to overrule Lorden v. Coffey. But, as was pointed out in White v. Gove, 67 N.E. 359, this decision has no bearing upon the recent decisions of this court under the Constitution of Massachusetts. And we must hold the statute unconstitutional in that part which directs assessments upon the abutters.

The question is raised whether the assessment in the present case was made under this statute, or under St. 1899, p. 460, c 433. We think it appears pretty plainly that it was intended to be made under the earlier statute. The order of assessment recites that the commissioners are 'acting under the provisions of section 14, chapter 323, p. 886, of the Acts of 1891, and acts in amendment or addition thereto,' and then goes on to determine the assessable cost in a way required by the earlier statute, but in direct violation of the later statute. The order includes the costs of both the street and the sewer, while St. 1899, p. 460, c. 433, amends St. 1891, p. 886, c. 323,§ 14, as previously amended, by striking out the section, and enacting one which makes the...