Warren v. Street Com'rs of Boston

• Decision Date: 07 January 1905
• Citation: 72 N.E. 1022,187 Mass. 290
• Parties: WARREN v. MAYOR AND STREET COM'RS OF CITY OF BOSTON. JORDAN et al. v. SAME.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 290

72 N.E. 1022

WARREN v. MAYOR AND STREET COM'RS OF CITY OF BOSTON.

JORDAN et al. v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1905

COUNSEL

Gaston, Snow & Saltonstall and Malcolm Donald, for petitioners Eben D. Jordan et al.

Moorfield Storey, Chas. Warren, and Warren, Perry & Codman, for petitioner Winslow Warren.

Thos M. Babson, for defendants.

Henry W. Putnam, for parties having similar interest with petitioner.

OPINION

KNOWLTON, C.J.

These are petitions for a writ of certiorari to quash the proceedings of the street commissioners of Boston in assessing betterments under St. 1902, p. 439, c. 527, for the laying out, extension, and construction of Huntington avenue. Our decision will depend upon the construction to be given to this statute. It was passed on June 27, 1902, and it is a law giving general authority to the street commissioners of Boston to assess betterments for public improvements completed by the city within six years before its enactment 'consisting of laying out, relocating, altering or widening, with or without construction of a sewer, a highway, or a highway and parkway, public way or public alley, or of changing the grade of or constructing, with or without a sewer, a highway, or a highway and parkway,' etc. At that time assessments of betterments in Boston under different statutes had been held invalid by this court--in some cases on account of the unconstitutionality of the statute, and in others on account of irregular or illegal action of the public authorities in proceedings on which the assessments were founded. Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124; Warren v. Street Commissioners, 181 Mass. 6, 62 N.E. 951; s. c., 183 Mass. 119, 66 N.E. 412. See Harwood v. Street Commissioners, 183 Mass. 348, 67 N.E. 362; White v. Gove, 183 Mass. 333, 67 N.E. 359. It was supposed that there were other invalid assessments or other public improvements, to pay the cost of which assessments of betterments had been contemplated, which, in view of these decisions, could not then be legally made. Huntington avenue had been constructed at an expense to the city of about $675,000, in disregard of the requirements of the statutes as to the mode of doing the work. An assessment of betterments for this construction had been held to be invalid, because of the violation of law that entered into the cost of the work which the abutters were asked to pay. Warren v. Street Commissioners, ubi supra. It seemed that no part of this cost could be assessed upon the estates specially benefited, without additional legislation. Under these circumstances, the act in question was passed. Two questions arise under it. One is whether the Legislature constitutionally could authorize a reassessment of betterments from the construction of Huntington avenue, so as to include in the assessment a portion of the expenditures made in violation of the statute. The other is whether the Legislature intended to authorize such a reassessment. As to the first question, the counsel for one of the petitioners concedes that the Legislature may authorize the reassessment of a betterment tax if the original assessment failed because of informality or other defect. But we have before us an argument that the statute, if construed according to the contention of the respondents, is unconstitutional.

The assessment of betterments under statutes of this kind is simply a mode of special taxation to meet the expenses of government in making public improvements which specially benefit particular property. If the other necessary conditions exist, such taxation may be authorized after as well as before the expenditure is incurred. Hall v. Street Commissioners, 177 Mass. 434, 59 N.E. 68, and cases there cited. This proposition includes, of course, the authorization of a reassessment to take the place of one which is void for irregularity or error. State v. Newark, 34 N. J. Law, 236; Dean v. Charlton, 27 Wis. 522; Re Piedmont Avenue East, 59 Minn. 522, 61 N.W. 678; Manley v. Emlen, 46 Kan. 655, 27 P. 844; Musselman v. Logansport, 29 Ind. 533; City of Chicago v. Sherman (Ill.) 72 N.E. 396. If the defect that makes the assessment void is an irregularity or error which the Legislature might have authorized, or an omission of that which it might have dispensed with by a proper statute, it is not beyond the power of the Legislature to correct the error by a subsequent act. The illegality in this case, which rendered the former assessment void, was a disregard of the requirements of the statutes that the work should all be done by contract, that the number of contracts should not exceed five, and that when work was to be done by the superintendent of streets, the estimated cost of which was $2,000 or more, he should invite proposals therefor by advertisements in daily newspapers, unless he had authority in writing from the mayor to do otherwise. There was a wide and apparently deliberate departure from these requirements, which relieved abutters from liability to special assessment to meet such expenditures, under St. 1894, p. 462, c. 416. Warren v. Street Commissioners, 181 Mass. 6, 62 N.E. 951. But the only illegality was the failure to observe the methods which had been prescribed for the protection of taxpayers. It was in the power of the Legislature to authorize the performance of such public work precisely as this was performed. The methods adopted may or may not have caused the city substantial loss. However that may be, notwithstanding the previous disregard of the law, it was in the power of the Legislature to relieve the general taxpayers by assessing a part of this expense upon estates specially benefited. So far as appears, the expenditures were not of such a kind that the indebtedness created by them may not be made the subject of either general or special taxation. We are of opinion that the statute is constitutional.

It is contended by the petitioners that the Legislature did not intend to make the statute apply to Huntington avenue. But the language is broad and sweeping, including in its ordinary meaning this public improvement as well...