Sears v. St. Com'rs of Boston

• Decision Date: 18 May 1899
• Citation: 173 Mass. 350,53 N.E. 876
• Parties: SEARS v. STREET COM'RS OF BOSTON. BEALE v. SAME. BREWSTER et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 350

53 N.E. 876

SEARS

v.STREET COM'RS OF BOSTON.

BEALE

v.SAME.

BREWSTER et al.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1899.

Report from supreme judicial court, Suffolk county.

Petitions by one Sears and by others against the street commissioners of Boston. Heard in the supreme judicial court, and reported to the full court. Judgment for petitioners.

R. Foster, Wm. D. Turner, and J.M. Codman, Jr., for Beale.

J.B. Warner, for Frank Brewster.

Chas. F. Choate, Jr., for Joshua M. Sears.

Andrew J. Bailey, for defendants.

KNOWLTON, J.

These are petitions for a writ of certiorari to quash an alleged illegal assessment of sewer charges upon property of the several petitioners. The law under which the respondents assumed to act in determining these charges in St.1897, c. 426, of which sections 7 and 8 are as follows:

“Sec. 7. The board of street commissioners, with the approval of the mayor, shall annually, before the 1st day of July, determine just and equitable sewerage charges to be paid by estates in said city for the construction, maintenance and operation of the sewerage works, taking into consideration in determining the charges the necessity of the works as caused by each estate; the amount of use thereof, if any, by the estate or its occupants; the benefit received therefrom by the estate; the amount of any assessment for a sewer paid by any owner of the estate; the length of time which has elapsed since such payment, and the use, if any, that has heretofore been made of the sewerage works by the occupants of the estate, and such other matters as they shall deem just and proper. The determination of such charges as aforesaid shall be final in all cases, and the amount thereof as determined for each estate shall be a lien thereon until paid, and said board shall notify the board of assessors of said city of the amount thereof forthwith after it has been determined, and the same shall be included in the next tax bill on the estate transmitted by said board to the collector, or in a tax bill therefor if no other tax bill is issued for such estate, and be included as part of the taxes on the estate.

“Sec. 8. All sewers and connections ordered to be made in constructing any way under the authority of the act of the year 1891 and of acts in amendment thereof or in addition thereto, shall be deemed to be constructed under the authority of this act, and the expenses therefor shall not be considered in determining the assessable cost of the work to be assessed under the authority of said act.”

The petitioners contend that these provisions of the statute are unconstitutional, and the most important questions in the case arise upon this contention. It is evident that these provisions cannot stand, as authorizing an assessment of a general tax, because the assessment called for is not proportional and equal. The statute not only directs an assessment upon a particular class of property, instead of on all taxable property, but it expressly requires, in determining the charges, the consideration of facts pertaining to particular estates in their relation to the charges, and to previous assessments, which prevent the making of a proportional assessment, viewing it as a general tax, and not as an assessment of benefits. If we treat the determination of these charges as a local and special assessment upon particular estates, we have to consider the principles on which such taxation is founded. It is well established that taxation of this kind is permissible, under the constitution of this commonwealth and under the constitution of the United States, only when founded upon special and peculiar benefits to the property from the expenditure on account of which the tax is laid, and then only to an amount not exceeding such special and peculiar benefits. City of Boston v. Boston & A.R. Co., 170 Mass. 95-101, 49 N.E. 95;Weed v. City of Boston, 172 Mass. 28, 51 N.E. 204;Proprietors of Mt. Auburn Cemetery v. City of Cambridge, 150 Mass. 12-14, 22 N.E. 66;Village of Norwood v. Baker, 19 Sup.Ct. 187;Sears v. Board (Mass.) 5 N.E. 138. Several of the questions now before us were considered at length in the recent case last cited, and it is unnecessary to repeat the discussion of them.

Does this statute prescribe taxation upon these estates for special and peculiar benefits only, or does it purport to authorize taxation on other grounds than special benefits, and for amounts larger than the amounts of such benefits? It directs the street commissioners annually to “determine just and equitable sewer charges to be paid by estates in said city,” etc. It requires them to take into consideration several subjects in determining these charges, one of which is the benefit received by the estate, and others of which possibly have some relation to the benefit received, and it then authorizes them to consider “such other matters as they shall deem just and proper.” The benefits to be considered in taxing each estate are not, in terms, those that are special and peculiar, but, so far as the language goes, may be those that it receives in common with the other estates in the city, and with the inhabitants generally. The fact that the charges to be determined are for the construction, maintenance, and operation of the sewerage works of the whole city gives some force to the possibility of a construction which includes all benefits; but, whether this construction should be adopted or not, the charges may be determined on any grounds which the street commissioners deem just and proper, and may not be founded in any great degree, if at all, upon special and peculiar benefits, and may in any particular case largely exceed such benefits. This fact in itself is enough to bring the statute within the prohibition of the constitution, inasmuch as it purports to authorize a taking of property to pay a charge which is not founded on a special benefit or equivalent received by the estate or its owner. Such a taking would be without due process of law. Village of Norwood v. Baker, 19 Sup.Ct. 187; New Brunswick Rubber Co. v. Commissioners of Streets & Sewers in City of New Brunswick, 38 N.J.Law, 190; Barnes v. Dyer, 56 Vt. 469;Thomas v. Gain, 35 Mich. 155.

The general tenor of this section seems at variance with the law in regard to special taxation. It seems designed to group together a great variety of expenses, including all that are connected with the administration of the sewer department in the city of Boston, many of which are proper subjects for general taxation only, and to assess them all upon real estate. In determining the charge to be made upon any particular estate, it is clear that most of the expenses to be reimbursed would be found to have been incurred in ways that could bring no special or peculiar benefit to that estate. The cost of constructing and maintaining sewers remote from it could confer no benefit. In two of these cases it appears by averments of the petition, which are not denied in the answer, that the estates of the petitioner have previously paid special assessments made by the city for the construction of sewers into which the estates drain, and in one of them it appears, in like manner, that no sewers have been constructed under St.1897, c. 426, and no repairs made under the provisions of said act upon sewers already existing with which the estates of the petitioner have or can have any connection, or from the use of which said estates derive any benefit. Where lands have paid assessments for special benefits from the construction of all sewers by whose operation they are affected, it cannot be said that they receive an additional special and peculiar benefit from the general oversight and operation of the sewers of Boston, such as to subject them to a second special assessment....