Smith v. City of Boston

• Decision Date: 04 January 1907
• Citation: 194 Mass. 31,79 N.E. 786
• Parties: SMITH v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 31

79 N.E. 786

SMITH v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1907

COUNSEL

Wilfred Bolster, for plaintiff.

Philip Nichols, for defendant.

OPINION

SHELDON J.

In view of the decisions of this court, it is not now disputed that the statutes under which the assessment in question was laid were unconstitutional and void so far as they purported to authorize such an assessment. St. 1891, p. 880, c. 323; Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124; Harwood v. St. Com'rs, 183 Mass. 348, 67 N.E 362; St. 1892, p. 492; White v. Gove, 183 Mass. 333 67 N.E. 359; St. 1897, p. 396, c. 426; Sears v. St Com'rs, 173 Mass. 350, 53 N.E. 876. And it was decided in Dexter v. Boston, 176 Mass. 247, 57 N.E. 379, 79 Am. St. Rep. 306, that under such circumstances a sewer assessment which has been paid, as here, under protest, may be recovered back in an action of contract. Such assessments have been not infrequently avoided on collateral proceedings. Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124; Ahearn v. County of Middlesex, 182 Mass. 518, 65 N.E. 905; White v. Gove, 183 Mass. 333, 67 N.E. 359. These principles would be sufficient to entitle the plaintiff to recover if nothing more appeared.

But this assessment was made in August, 1898; and in July, 1904, one Harwood, the owner of other land affected thereby, brought a petition for a writ of certiorari to quash the assessment, upon the same grounds which are now relied upon; and this court, though assuming the validity of those contentions, declined to issue the writ and dismissed the petition, holding that certiorari was not a writ of right, and that in view of the petitioner's laches and the circumstances of that case, substantial justice did not require the quashing of the assessment. Harwood v. Donovan, 188 Mass. 487, 74 N.E. 914. The defendant's counsel now contends that the decision of that case was tantamount to a judgment sustaining the validity of the assessment by which all parties, including the plaintiff in the case at bar, are bound. He relies upon some expressions in the opinion of the court in the cases of Brewer v. Boston, Clinton & Fitchburg R. R., 113 Mass. 52, 57, and Taber v. New Bedford, 135 Mass. 162, 165. He argues further that the plaintiff must show that this assessment was void not only when laid, but also on the day of its payment in October, 1904, and that on this last date, though vulnerable at first, it had under the decision of this court in Harwood v. Donovan, ubi supra, become crystallized by lapse of time and general acquiescence into complete validity.

The fallacy of the defendant's argument is that it rests upon the assumption that the court by its decision in Harwood v Donovan sustained the validity of the assessment in question. But this is not so; on the contrary, the court assumed its invalidity and simply declined to quash it upon the request of that petitioner. If the assessment had been merely voidable and so good until it should be quashed, doubtless this result would have taken nothing from its validity and would have left it in full force and effect. But it was more than voidable; it was void from the beginning, as appears by the cases already referred to. The superintendent of streets had no jurisdiction to make this order. The effect of the decision in Harwood v. Donovan was simply to leave the assessment in its original position, not to endow it with any new strength. This order stands on exactly the same footing as an order made by county commissioners; and the distinction between an order or adjudication of such a tribunal which is only voidabel and one which is utterly void was pointed out in the recent case of Ahearn v. County of Middlesex, 182 Mass. 518, 65...