Proprietors of Mt. Auburn Cemetery v. City of Cambridge
| Decision Date | 05 September 1889 |
| Citation | 22 N.E. 66,150 Mass. 12 |
| Parties | PROPRIETORS OF MT. AUBURN CEMETERY v. BOARD, ETC., OF CITY OF CAMBRIDGE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo. Putnam and W.L. Putnam, for petitioners.
Chas J. McIntire, for respondents.
Pub.St c. 50, § 1, authorizes the proper officers of towns and cities to make main drains and common sewers, and section 4 provides that "every person who enters his particular drain into such main drain or common sewer, or who by more remote means receives benefit thereby for draining his cellar or land," shall pay to the town or city a proportional part of the charge for making the sewer, to be assessed by the mayor and aldermen. Section 7 provides that the city council of a city, or the voters of a town, may adopt a system of sewerage for the whole or a part of its territory, and may provide that assessments under section 4 shall be made upon owners of estates within such territory by a fixed uniform rate, based upon the estimated average cost of all the sewers therein, according to the frontage of such estates on any street where the sewer is laid, or according to the area of such estate within a fixed depth from such street, or according to both frontage and area. Section 8 provides that, instead of the assessment under section 4, it may be determined that every person who uses the sewer shall pay therefor a reasonable sum, to be determined by the proper officers. The mayor and aldermen of Cambridge made a sewer through Mount Auburn street, on which Mount Auburn cemetery abuts, and assessed the cost upon the owners of estates on the street, under the seventh section, and included the petitioner in the assessment as owner of the cemetery. The only question is whether it is liable to be assessed. St.1831, c. 69, authorized the Massachusetts Horticultural Society to dedicate and appropriate any part of the real estate owned by it as and for a rural cemetery or burying-ground, and for the erection of tombs, cenotaphs, and monuments for and in memory of the dead, and for that purpose to lay out the same in burial lots, and to plant and embellish the same with shrubbery, flowers, trees, walks, and other mural ornaments, and provided that "whenever the said society shall so lay out and appropriate any of their real estate for a cemetery or burying-ground, as aforesaid, the same shall be deemed a perpetual dedication thereof for the purposes aforesaid, and the real estate so dedicated shall be forever held by said society in trust for such purposes, and for none other." It was authorized to grant rights of burial in the lots into which the land should be divided, "and every right so granted and conveyed shall be held for the purpose aforesaid, and for none other, as real estate, by the proprietor or proprietors thereof, and shall not be subject to attachment or execution." Certain land in Cambridge was dedicated and appropriated as a cemetery under this statute. By St.1835, c. 96, the petitioner was incorporated and authorized to receive a conveyance of the cemetery from the Massachusetts Horticultural Society, to be held upon the same trusts to and for the same purposes, and with the same powers and privileges as set forth in St.1831, c. 69. The land which was conveyed by the Massachusetts Horticultural Society to the petitioner under this statute is all laid out in lots, with drive-ways, walks, and appendages necessary to its use as a cemetery, and in a large portion of it burial rights have been sold. By the act of incorporation the cemetery was exempted from all public taxes, and it was required that lots should be sold as fast as practicable, and that the proceeds of sales retained by the corporation should be devoted to the preservation, improvement, and enlargement of the cemetery, and the incidental expenses thereof, and to no other purpose.
The assessment in question is a tax levied under the authority and the restrictions of the constitution. Drogan v. City of Boston, 12 Allen, 223; College v. City of Boston, 104 Mass. 482. It is a public tax in the sense that it is levied for a public object; it is a local tax in the sense in which most public taxes are local, that it is limited to a certain locality; it differs from ordinary public taxes in that it is not levied upon the polls and estates within a municipality or a district in respect of public or common benefits, but upon particular lands in respect of a particular benefit received by them from the execution of a public object. Taxes voted by towns and cities for public ways and common sewers are for public objects, and are in every sense public taxes. When the construction of a particular way or sewer is not only for the public benefit, but is also of special benefit to particular lands, the whole or a part of the tax therefor may be levied upon the lands so specially benefited, and there are general statutes prescribing the occasions and the manner of assessing such taxes. Pub.St. cc. 50, 51. In the case of public ways the assessment on any land is limited to one-half of the benefit to it; in the case of sewers the whole or any part of the cost--except in the city of Boston, where at least one-fourth of the expense must be borne by the city--may be assessed proportionally upon the lands benefited, either in proportion to the value of the land or to the quantity of the land.
At the time of the dedication of Mount Auburn cemetery and of the incorporation of the petitioner there was no general statute which authorized public officers to construct drains and sewers. St.1796, c. 47, and Rev.St. c. 27, gave no such authority, and while the statute provided for the construction of main drains and common sewers by individuals, and provided that "every person who afterwards shall enter his particular drain into the same, or by more remote means, shall receive any benefit thereby for the draining of his cellar or land, shall pay to the owners" a proportional part of the expense of making and repairing the same, a drain so made was private property, and the statute could not be construed as authorizing a tax or compulsory assessment upon one who did not voluntarily accept the benefit of it. City of Boston v. Shaw, 1 Metc. 130; Downer v. City of Boston, 7 Cush. 277; Wright v. City of Boston, 9 Cush. 233. St.1841, c. 115, made main drains and common sewers the property of cities and towns, and authorized municipal officers to make and maintain them in their respective towns and cities. Section 2 provided that "every person who may hereafter enter his particular drain into any main drains or common sewers so constructed as aforesaid, for the draining of his cellar or land, or in obedience to the by-laws or ordinances of the town or city, or who by any more remote means shall receive any benefit thereby for draining his cellar or land, shall pay to the town or city a proportional part of the charge of making and repairing such main drain or common sewer." This statute was to take effect only in towns and cities which accepted it. This provision was re-enacted in Gen.St. c. 48, § 4, in the form in which it appears in Pub.St. c. 50, § 4. The provision requiring the assent of towns and cities was repealed by St.1869, c. 111.
The question before us is not so much whether the legislature intended by the provision in the chapter exempting from public taxes to exempt from assessments under general laws for betterments and benefits,--for such laws were then unknown,--as whether it was the intention of those laws when subsequently enacted to include the cemetery in lands to be specially taxed under them. Other statutes provided for the drainage of meadows, swamps, or lowlands. Rev.St. c. 115; Pub.St. c. 189. The statutes relating to main drains and common sewers were intended for the improvement of land for purposes of residence or business, and having a value for building purposes. The drainage of houses, rather than of lands, is intended. Neither the...
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