Mullen v. Bd. of Sewer Com'rs of Milton

• Decision Date: 14 September 1932
• Citation: 280 Mass. 531,182 N.E. 641
• Parties: MULLEN v. BOARD OF SEWER COM'RS OF MILTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 531

182 N.E. 641

MULLEN

v.BOARD OF SEWER COM'RS OF MILTON.

Supreme Judicial Court of Massachusetts, Norfolk.

Sept. 14, 1932.

Case Reserved and Report from Supreme Judicial Court, Norfolk County.

Petition for a writ for certiorari by Annie F. Mullen to quash an assessment levied by the Board of Sewer Commissioners of Milton on land of the petitioner for benefits accruing from the construction of sewers and a system of sewerage.

Order in accordance with opinion.

M. Michelson, of Boston, for petitioner.

L. Bryant, of Boston, and John Harvey, of Lowell, for respondents.

RUGG, C. J.

This is a petition for a writ of certiorari to quash an assessment levied by the respondents upon land of the petitioner for benefits accruing from the construction of sewers and a system of sewerage.

[280 Mass. 533]1. The petitioner first contends that the assessment is invalid because St. 1895, c. 304, under which it was levied, is unconstitutional on the ground that it authorizes the imposition of a pecuniary burden upon property in excess of the special benefit arising from the expenditure. It is provided by section 9 of said chapter 304 that ‘said board of sewer commissioners shall determine what proportion of the cost of said systems of main drains and of sewerage said town of Milton shall pay, provided that it shall not pay less than one quarter nor more than two thirds of the whole cost. The remaining cost of each of said systems shall be borne by the owners of estates situated within the territory embraced by it and benefited thereby. The owners of such estates shall be assessed by said commissioners their proportional parts respectively of such portion of the total cost of the system as is not borne by the town as above provided; such proportional parts to be based upon the estimated average cost of all the sewers composing such system. * * *’

The principles by which to test the constitutionality of statutes authorizing special assessments upon property to defray the cost of local public improvements have been stated at length in comparatively recent decisions. It would serve no useful purpose to expound them again at length. The Legislature within reasonable limits may determine that the cost of a particular public improvement shall fall upon a designated district and may fix the rules for its apportionment. It may authorize public officers to make an apportionment of the cost of such improvement upon the estates receiving peculiar advantages above those accruing in general, by methods requiring that assessments be proportional and founded on and not in excess of special benefits. The statute here assailed does not violate the governing constitutional provisions. It falls within the authority of decided cases where statutes indistinguishable from it in essence have been upheld. Cheney v. Beverly, 188 Mass. 81, 74 N. E. 306;Corcoran v. Cambridge, 199 Mass. 5, 85 N. E. 155,18 L. R. A. (N. S.) 187;White v. Gove, 183 Mass. 333, 67 N. E. 359;Smith v. Worcester, 182 Mass. 232, 65 N. E. 40,59 L. R. A. 728;Hall v. Street Commissioners of Boston, 177 Mass. 434, 59 N. E. 68;Sayles v. Board of Public Works of Pittsfield, 222 Mass. 93, 109 N. E. 823, and cases collected; Opinion of the Justices, 261 Mass. 556, 605, 606, 159 N. E. 70;Houck v. Little River Drainage District, 239 U. S. 254, 36 S. Ct. 58, 60 L. Ed. 266. Ascertainment of the assessment by combining one dollar and fifty cents on each foot of frontage of estates on the street where the sewer was constructed, and one and one half cents on each square foot of area of such estates within one hundred feet of the street, violated no constitutional guaranty. Cheney v. Beverly, 188 Mass. 81, 74 N. E. 306;Taylor v. Mayor & Aldermen of Haverhill, 192 Mass. 287, 78 N. E. 475;Hester v. Collector of Taxes of Brockton, 217 Mass. 422, 105 N. E. 631;Houck v. Little River Drainage District, 239 U. S. 254, 265, 36 S. Ct. 58, 60 L. Ed. 266.

2. No error is shown respecting the computation of the assessment. The respondents rightly included in the total cost of the sewerage system the cost of that part of the system in front of nonassessable property, town property, the unassessed side of a corner lot, and that part crossing streets. All such sewers needed to be built. They formed a part of the total cost of the system. The division of the total cost as between the town and the estates benefited was well within the flexible limits permitted by section 9 and determined by the respondents.

3. The petitioner contends that the assessment is invalid because not in compliance with St. 1895, c. 304, in that the respondents have included in the cost of the system payments made by the town to the commonwealth for the metropolitan sewer system. This involves a closer examination of the governing statutes. Turning first to said chapter 304: Its title is ‘An Act to Authorize the Town of Milton to Construct One or More Systems of Sewerage.’ By section 2 the town is empowered to ‘lay out, construct and maintain one or more systems of main drains and of sewerage and sewage disposal for said town’ and to take property deemed ‘necessary for the establishment of such systems of drains, sewerage and sewage disposal’ and to connect with the ‘sewers or sewerage system or systems of the city of Boston, of the town of Hyde Park, or of the metropolitan sewerage district, for the purpose of disposing of sewage through the same * * *’ and also for the same purpose to contract with the city of Quincy. Sewage disposal of Milton in fact has been accomplished through the metropolitan sewage disposal system established by St. 1895, c. 406, in which that town was included. That system was established by act of the General Court for the benefit of a specially created territory, including three towns and the city of Boston. The public work thus undertaken was executed by state officers for the general benefit expected to flow ‘from ‘the probability of better health and greater personal comfort of the people at large.’' Kingman, Petitioner, 170 Mass. 111, 117, 48 N. E. 1075, 1078. The cost of the construction of that system was apportioned among the several municipalities included within the district and was assessed upon each of them as provided in section 16 of said chapter 406. It was included in the state tax each year to be paid by each. Section 18 of said chapter 406. See now G. L. c. 92, § 5. Whether the principles of such apportionment have varied from time to time is not disclosed on the record. Said chapter 406 conferred no authority upon the several municipalities constituting the district to include the cost of this system to each as a part of the total cost of its local sewer system for purpose of assessment upon estates specially benefited by such local system. Such authority, if it exists, must be sought so far as concerns Milton in said chapter 304. This chapter deals chiefly with the local system to be constructed by the local board. There is recognition in its section 2 of the metropolitan system of sewage disposal as a means of disposal of the Milton sewerage. It is to be observed that the authority conferred by its section 9, to assess costs upon estates in the town receiving special benefit, makes no mention of the cost imposed upon the town as a part of the district created by said chapter 406. It is significant that the metropolitan system was mentioned in said chapter 304, § 2, and not mentioned in section 9. That cannot be regarded as accidental. The only cost which by section 9 may be assessed upon the benefited estates is that part not borne by the town of the ‘whole cost’ of ‘said systems of main drains and of sewerage’; the cost of sewage disposal for the town through the metropolitan system provided for and so carefully described in detail in section 2 is not included. The two systems, the one established by the town and the other by the...