Sears v. Board of Aldermen of City of Boston

• Decision Date: 03 March 1899
• Citation: 53 N.E. 138,173 Mass. 71
• Parties: SEARS v. BOARD OF ALDERMEN OF CITY OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 71

53 N.E. 138

SEARS v. BOARD OF ALDERMEN OF CITY OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1899

The city council of Boston, by an order approved by the mayor April 18, 1898, determined that all streets or portions of streets lying within certain territory should be watered in whole at the expense of the abutters, and that all other streets or portions of streets should be watered in whole at the expense of the city. The board of aldermen, by an order approved by the mayor April 27, 1898, authorized the superintendent of streets to determine the amount of the assessment for street watering to be laid on the estates abutting on the streets to be watered by assessment. On April 18, 1898, the mayor recommended the passage of an order appropriating $75,000 for street watering, which was done and the superintendent of streets caused to be made a list of streets and portions thereof which the city had determined should be watered (which list specified each estate abutting on such street, the number of linear feet so abutting, and the amount per such linear foot of the assessments, which was five cents per front foot), and sent the report to the mayor who reported to the board of aldermen and the city council that the tax to be raised would be in excess of the amount appropriated, and recommended that the excess be also appropriated, which was done.

COUNSEL

C.F Choate, Jr., for petitioner.

T.M. Babson, for defendants.

OPINION

KNOWLTON J.

This is a petition for a writ of certiorari to quash alleged illegal assessments laid to meet the cost of watering streets in the city of Boston, under St.1897, c. 419. The first and most important question in the case is whether this statute is constitutional. The right of the legislature to raise money by taxation is founded upon article 4, § 1, c. 1, of the constitution of the commonwealth. Under this article there is authority "to impose and levy reasonable duties and excises upon any produce, goods, wares, merchandise, and commodities," etc. This authority we need not consider in the present case. Secondly, there is authority "to impose and levy proportional and reasonable assessments, rates and taxes upon all the inhabitants of, and persons resident and estates lying within, said commonwealth." The watering of streets in thickly-settled portions of cities is such a public benefit that it legitimately may be provided for at the public expense. So far as it promotes the comfort, convenience, and prosperity of the people generally, as distinguished from landowners, it should be provided for by general taxation, which involves the assessment of proportional and reasonable taxes upon all persons and property within the city. The statute purports to authorize every city not only to "appropriate money for watering the public ways, or portions thereof, within its limits, at the expense, in whole or in part, of the city," but also to "determine that certain other public ways or portions thereof shall be watered at the expense in whole or in part of the abutters thereon." St.1897, c. 419, § 1. This last provision calls for another kind of taxation, which is local and special. Such taxation, under the constitution, can only exist when there is a special or peculiar benefit to certain real estate, different from that which is received by the inhabitants generally. The owners of the land upon which such an assessment is made must pay the same share of the general taxes in proportion to the value of their property that other persons pay. As the constitution requires that taxes shall be proportional and reasonable, this additional special tax can be justified only when there is a special benefit to property from the expenditure on account of which the assessment is made. Wright v. City of Boston, 9 Cush. 233, 234; Proprietors of Mt. Auburn Cemetery v. City of Cambridge, 150 Mass. 12-14, 22 N.E. 66; Dorgan v. City of Boston, 12 Allen, 233-237; City of Boston v. Boston & A.R. Co., 170 Mass. 95, 49 N.E. 95; Town of Norwood v. New York & N.E.R. Co., 161 Mass. 259-264, 37 N.E. 199; Village of Norwood v. Baker, 19 Sup.Ct. 187; Stuart v. Palmer, 74 N.Y. 189; Sharpe v. Speir, 4 Hill, 82; Hammett v. Philadelphia, 65 Pa.St. 146-157; Tide-Water Co. v. Coster, 18 N.J.Eq. 527; City of Norfolk v. Chamberlain, 89 Va. 196-213, 16 S.E. 730; Nichols v. Bridgeport, 23 Conn. 189; Thomas v. Gain, 35 Mich. 162; Taylor v. Palmer, 31 Cal. 254; Sheehan v. Hospital, 50 Mo. 155. In the last analysis, the assessment is not laid as a part of the burden of public expenditure put upon the land; for the burdens which are strictly public are to be shared proportionally by all the people, according to the value of their taxable property. It is rather in the nature of a diminution of that which at first is a public burden, by subtracting from it the amount of the special enhancement of value of private property from the expenditure of public money in part for its benefit. It is taxation in the sense that it is a distribution of that which is originally a public burden, growing out of an expenditure primarily for a public purpose.

It is a grave question whether the benefit that comes to abutting property from the watering of the street in front of it is such an improvement to the property that it can be made the subject of an assessment upon it. There must be a real substantial enhancement of value growing out of a public work to warrant an assessment of special taxes upon particular estates on account of it. The watering of streets produces only transitory effects, and makes no permanent change in the condition of the property. It greatly promotes the health and comfort of the people generally, who use the streets from time to time, but its greatest benefit is to the abutting estates as places for residence or the transaction of business. Indeed, so much more important to the occupants than to the general public have been the benefits from watering streets that until lately the expense of the work in this commonwealth has usually been borne by the abutters, who have procured the watering to be done by private contractors. If a special benefit, accruing from day to day, which very materially increases the rental value of real estate by reason of the proximity of the property to the place where the beneficial work is done, can be treated as an improvement within the reason of the rule which permits special assessments, then such assessments may be made to pay the expense of watering streets. With some hesitation, we hold that there is an improvement of private property when this work is done by a city, which may warrant an assessment upon the abutters. It was so held in State v. Reis, 38 Minn. 371, 38 N.W. 97, and in Reinkin v. Fuehring, 130 Ind. 382, 30 N.E. 414, although the cases generally which uphold such assessments relate to improvements of a permanent character. Many improvements from which real estate receives an incidental advantage are held to justify only general taxation. Hammett v. City of Philadelphia, 65 Pa.St. 146; In re Washington Ave., 69 Pa.St. 352; Erie v. Russell, 148 Pa. St. 384-386, 23 A. 1102; Dyar v. Farmington Village Corp., 70 Me. 527; McClosky v. Chamberlin, 37 N.J.Law, 388; Dietz v. Neenah, 91 Wis. 422-427 64 N.W. 299, and 65 N.W. 500.

Treating the watering of a street in a city as a work which may cause a direct, special, and peculiar benefit to abutting estates and thus enhance their value so long as it continues, we come to the question whether the mode of assessment directed by this statute is within the constitutional power of the legislature. Section 2 of the statute is as follows: "If a city shall determine that the streets or certain streets or portions of streets within its limits shall be watered in whole or in part at the expense of the abutters, the expense of the watering of such streets or portions of streets for that municipal year, and the proportion of such expense to be borne by abutters, and the rate to be assessed upon each linear foot of frontage of estate upon such streets or portions thereof, shall be estimated and determined by the board of aldermen, and the expense so determined of such watering to be borne by...