Smith v. City of Worcester

• Decision Date: 31 October 1902
• Citation: 65 N.E. 40,182 Mass. 232
• Parties: SMITH v. CITY OF WORCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

182 Mass. 232

65 N.E. 40

SMITH v. CITY OF WORCESTER.

Supreme Judicial Court of Massachusetts, Worcester.

October 31, 1902

COUNSEL

Frank B. Smith T. H. Gage, Jr., and Frank F. Dresser, for petitioner.

Arthur P. Rugg and Ernest I. Morgan, for respondent.

OPINION

HOLMES C.J.

This is a petition for a writ of certiorari to quash a sewer assessment levied under St. 1867, c. 106. The question whether the petition can be sustained was reserved by a single justice of this court.

We are asked to declare the statute unconstitutional on the ground that the assessment which it purports to authorize may exceed the benefit to the estate assessed, and therefore is bad under the recent decisions of this court. Sears v Commissioners, 173 Mass. 350, 53 N.E. 876; Dexter v City of Boston, 176 Mass. 247, 251, 57 N.E. 379, 79 Am St. Rep. 306; Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124. It is admitted that the statute has been before the court repeatedly, and has been upheld after argument as to its validity. Butler v. City of Worcester, 112 Mass. 541, 555. See Worcester Agricultural Soc. v. City of Worcester, 116 Mass. 189; Workman v. City of Worcester, 118 Mass. 168; Clark v. City of Worcester, 125 Mass. 226. But it is said that the rule of the recent cases cited was not understood at the time of these decisions, and that the latter no longer are authority so far as the present question is concerned.

It would be a misfortune if we were driven to the conclusion contended for by the plaintiff, after the act has stood so long under the shelter of an express decision, and after, as we may presume, very great and costly improvements have been made and probably titles passed in reliance upon the authority which the statute purports to confer. It is only justice to require an argument from which there is no possible escape before we accept such a result. Rogers v. Goodwin, 2 Mass. 475, 478; Holmes v. Hunt, 122 Mass. 505, 516, 23 Am. Rep. 381. But we do not suppose the recent decisions of this court to have made such slaughter among the older cases as the petitioner's counsel is inclined to believe, and we find it unnecessary to consider what effect, if any, is to be given to the modification by French v. Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879; Webster v. City of Fargo, 181 U.S. 394, 21 S.Ct. 623, 45 L.Ed. 912; Cass Farm Co. v. City of Detroit, 181 U.S. 396, 21 S.Ct. 644, 645, 45 L.Ed. 914; and the other cases in the same volume, of the law as laid down in Village of Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443, a decision to which while it stood unqualified we were bound to defer.

We are of opinion that the act may be sustained. Under the recent decisions it may be true that when the Legislature is passing a law of general future application, and when therefore it cannot be supposed to have compared the local benefit with the cost, the only mode in which it can be made certain, apart from the police power, that constitutional rights are preserved, is by limiting each assessment upon an estate to the benefit received by that estate. But when the Legislature has contemplated a certain region and may be supposed to have acted in view of a specific scheme, there is no doubt that within reasonable limits it may determine that the cost of an improvement shall fall upon a designated district and may fix the principles upon which the cost shall be apportioned. In re Kingman, 153 Mass. 566, 27 N.E. 778, 12 L. R. A. 417; French v. Paving Co., 181 U.S. 324, 342, 343, 21 S.Ct. 625, 45 L.Ed. 879; Parsons v. District of Columbia, 170 U.S. 45, 18 S.Ct. 521, 42 L.Ed. 934; Bauman v. Ross, 167 U.S. 548, 593, 17 S.Ct. 966, 42 L.Ed. 270. See Carson v. City of Brockton, 175 Mass. 242, 245, 56 N.E. 1, 48 L. R. A. 277; Id., 182 U.S. 398, 21 S.Ct. 860, 45 L.Ed. 1151. It may deal with the whole improvement as a unit and charge those assessed with a share of the total expense. Butler v. City of Worcester, 112 Mass. 541, 555; Dorgan v. City of Boston, 12 Allen, 223; Leominster v. Conant, 139 Mass. 384, 388, 2 N.E. 690; Sears v. Commissioners, 180 Mass. 274, 278, 62 N.E. 397; Parsons v. District of Columbia, 170 U.S. 45, 47, 18 S.Ct. 521, 42 L.Ed. 943. How far it may authorize an inferior body to constitute a special taxing district need not be considered here.

In Sears v. Commissioners, 173 Mass. 350, 53 N.E. 876, and Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124, the statutes under consideration were general provisions for such sewers and streets as should be constructed or laid out in Boston thereafter, and the Legislature could not be taken to have passed upon a scheme. In the former case, the act authorized the street commissioners to take into consideration other matters beside the benefit received by the estate, and showed on its face that the Legislature had not undertaken to decide anything with regard to that. Of course there may arise cases in which it is difficult to say how far the Legislature has a particular region and a particular plan in mind. Perhaps we should have hesitated over the Worcester statute if it had come before us now for the first time. But as it stands now, the act before us fairly may be supposed to have contemplated a system and a more or less specific scheme even if the scheme was not then complete in its details. This was indicated in Butler v. City of Worcester, 112 Mass. 541, 552, and in view of that and later decisions must be assumed. On that footing the Legislature determined that the real estate on the line of the sewers, together with possibly some other land, would be benefited as a whole to the extent of the charge put upon it. Butler v. City of Worcester, 112 Mass. 541, 555. The language is 'Every person owning real estate upon any street,' etc., 'or whose real estate may be benefited thereby.' The antithesis expressed is between estates on the line of the sewer, and thus obviously benefited, and those others which are benefited although not upon the line. Butler v. City of Worcester, 112 Mass. 541, 553, 555; Workman v. City of Worcester, 118 Mass. 168, 177. The statute, we may remark in passing, does not purport to embrace all the real estate in the city as the region to be taxed, but the real estate along the line of the sewers and some other specially benefited land. The argument that the city is treated as a unit and that therefore the cost should have gone into the general taxes proceeds on a false premise.

When the Legislature has...