Stark v. City of Boston

• Decision Date: 03 January 1902
• Parties: STARK et al. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 293

62 N.E. 375

STARK et al. v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1902

COUNSEL

C. W. Cushing, for plaintiffs.

Philip Nichols, for defendant.

OPINION

KNOWLTON J.

In Sears v. Board, 173 Mass. 71, 53 N.E. 138, 43 L. R A. 834, it was held that St. 1897, c. 419, was constitutional as applied to the facts of that case, although a doubt was intimated as to whether there might be unoccupied lands in the district assessed, and whether as to such lands it might not be unconstitutional. The assessment for watering the streets in the present case was founded on St. 1899, c. 366 § 3, which, in its main features, is like the former statute above referred to, although it contains an additional provision giving to every one aggrieved by action under it the right to be heard upon an application for an abatement and requiring abatement to be made either of the whole or of a part of the charge if the assessment is improper or excessive. The application may be made to the street commissioner within one month after notice of the charge has been given to the landowner. This secures to every one interested a right of a sufficient hearing. Sears v. Commissioners, 173 Mass. 350, 356, 53 N.E. 876; Bauman v. Ross, 167 U.S. 548-590, 17 S.Ct. 966, 42 L.Ed. 270. We are also of opinion that this section, taken in connection with the two sections preceding it, requires that the assessments shall be founded on special and peculiar benefits only, and shall be reasonable and proportional. While it is to be assumed that, under the first section, the board of aldermen, in dividing the city into districts, will have regard to the principles of law that govern such assessments, and will so arrange that the payment of a specified sum per lineal foot will generally be just, there may be cases that call for a reduction or for an abatement of the whole assessment. Section 3 is intended to cover all such cases, but they are supposed to be few and exceptional. It is therefore not unreasonable that the landowner should be left to make application in regard to them after notice of the charge has been given him, and this feature of the statute does not render it unconstitutional. This remedy provided for the correction of possible assessments which otherwise would be erroneous, and is the only one that can be availed of under the statute. If no application for an abatement is made, it is...