Union Street Railway Co. v. Mayor of New Bedford
| Decision Date | 18 September 1925 |
| Citation | 253 Mass. 314 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | UNION STREET RAILWAY COMPANY v. MAYOR OF NEW BEDFORD & others. |
January 27, 1925.
Present: RUGG, C.
J., BRALEY, CROSBY CARROLL, & WAIT, JJ.
Tax, Betterment reassessment. Statute, Construction.
An order for an assessment of betterments under R.L.c. 50, Section 1, adopted by the board of aldermen of the city of New Bedford, even if it be assumed that under R.L.c. 50, Sections 1, 9; c. 8 Section 5, cl. 10;
St. 1902, c.
460, the board of aldermen might validly adopt such an order without the concurrence of the common council, is of no force nor effect until presented to the mayor and approved by him.
An order for the assessment of betterments under R.L.c. 50, Section 1, for the widening of a highway, if it was adopted by the board of aldermen of the city of New Bedford two days before the expiration of the two years limited by R.L.c. 50, Section 2 was then presented to the common council, where it was amended, and was not finally adopted by the board of aldermen in concurrence until over a month beyond the two year limit, when it was presented to and was approved by the mayor, is of no force and effect.
A reassessment under R.L.c. 50, Section 2, is authorized only when there has been an assessment under R.L.c. 50, Section 1, within the two years there limited.
Tax laws are to be construed strictly against the taxing power, and the right to tax is not to be extended by implication.
Reassessments in December, 1923, of betterments resulting from a widening of a highway under an order of the board of aldermen and common council of the city of New Bedford adopted in June, 1913, are not governed by the law in force in 1923, it not appearing that the terms of G.L.c. 80,
Section 16, are retroactive; and under R.L.c. 50, Section 2, the reassessment as well as the original assessment under Section 1 must be within the limited period of two years after the passage of the order for the public improvement therein described.
PETITION, filed in the Supreme Judicial Court for the county of Suffolk on March 6, 1924, for a writ of certiorari bringing to the court orders and proceedings and all records of actions taken by the mayor, board of aldermen and common council of the city of New Bedford with relation to an assessment upon the petitioner in connection with the widening of Purchase Street between Union Street and Elm Street in the city of New Bedford under orders adopted in January and June, 1913. Also, a
PETITION, filed in the Supreme Judicial Court for the county of Suffolk on March 6, 1924, for a writ of certiorari bringing to the court orders and proceedings and all records of action taken by the mayor, board of aldermen and common council of the city of New Bedford with relation to an assessment upon the petitioner in connection with the widening of Union Street between Fourth Street and Sixth Street, "to the end that the same may be dealt with as law and justice may require."
The facts were agreed upon. Material facts are described in the opinion. The two cases were reserved by Carroll, J., upon the petitions and the agreed statement of facts for determination by the full court.
B.W. Warren, (H. Stockton, Jr., with him,) for the petitioner. D.J. Lyne, (J.T. Kenney with him,) for the respondents.
These are petitions for writs of certiorari to set aside certain reassessments laid upon the petitioner in connection with the widening of a part of Purchase Street and of a part of Union Street in the city of New Bedford. The cases come before us by reservation on the petitions and an agreed statement of facts.
It is assumed for the purposes of this decision, without so deciding, that the orders for the widenings were validly passed and became operative on June 26, 1913, in accordance with statutes permitting assessments of betterments. It was provided by R.L.c. 50, Section 1, then in force, that a betterment assessment might be laid "within two years after the passage" of such an order. On June 24, 1915, the board of aldermen of New Bedford passed orders purporting to lay an assessment of betterments arising from the widenings authorized by the orders of June 26, 1913. These orders were never adopted in concurrence by the common council, nor were they ever presented to the mayor for approval or approved by him. They were invalid and did not become operative. If it be assumed that under R.L.c. 50, Sections 1, 9; c. 8, Section 5, cl. 10, and St. 1902, c. 460, the board of aldermen alone might validly adopt an order for the assessment of betterments, such an order could have no force or effect until presented to the mayor for approval. R.L.c. 26, Sections 9, 10. The statutes are reviewed and that conclusion reached in Jewett v. Mayor of Medford, 233 Mass. 65, as matter of general law as well as interpretation of the charter of Medford. The logic of that opinion is decisive on this point.
On the same June 24, 1915, the board of aldermen adopted two orders for the assessment of betterments arising from the same widenings authorized by the orders of June 26, 1913. These orders were presented to the common council, were there amended, and not finally adopted by the board of aldermen in concurrence until July 29, 1915, on which date they were presented to and approved by the mayor. Manifestly this was not within the required two years.
Both groups of orders were therefore ineffective. Neither group constituted determination in accordance with law of the value of the benefit or advantage arising from the widening and an assessment of the same within the two years fixed by R.L.c. 50, Section 1.
Since there was no assessment under R.L.c. 50, Section 1, within the two years there expressly limited, there is no room for the operation of Section 2. Under the latter section a reassessment is authorized only when there has been "such assessment," that is, an assessment within the two years there limited.
The reassessments here assailed are invalid on another ground. They were laid by orders...
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