Weed v. City of Boston

• Decision Date: 16 September 1898
• Citation: 172 Mass. 28,51 N.E. 204
• Parties: WEED v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 28

51 N.E. 204

WEED v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

September 16, 1898

COUNSEL

J.W. Pickering, for petitioner.

T.M Babson, for respondent.

OPINION

FIELD C.J.

As the case was heard upon the petition and answer, all material facts well alleged in the answer, and all material facts well alleged in the petition which are not denied or put in issue by the answer, and are consistent with the record of the respondents, must be taken to be true. This is in accordance with the practice which has been adopted in proceedings like the present, when the case is set down for hearing on petition and answer. Collins v. Holyoke, 146 Mass 298, 15 N.E. 908. The case has been reserved upon the following questions: "(1) Whether certiorari is the proper remedy? (2) Whether the assessment is invalid in law for any reason disclosed by the entire record, or by reason of the unconstitutionality of chapter 402, Acts 1892?" Certiorari undoubtedly is a proper remedy to try the question whether the assessments are invalid for any reason disclosed by the record, or because of the unconstitutionality of the statute. Bowditch v. Superintendent, etc., 168 Mass 239, 46 N.E. 1026; Holt v. City Council, 127 Mass. 408; City of Boston v. Boston & A.R. Co., 170 Mass. 95, 49 N.E. 95. The report recites as follows: "The respondents did not appeal to the discretion of the court, but admitted that the nature and purpose of the sewer, and the manifest injustice and hardship of the assessments, were such that the writ ought to issue if certiorari was the proper remedy and the act was unconstitutional, or the entire record disclosed such error in law as to warrant the issuing of the writ." The answer of the respondents is not so full and definite as it should have been. It does not contain a statement of the amount of expenses incurred in the construction of the sewer. A schedule of the number of the lots, of the number of feet assessed in each lot, and of the amount of the assessments with reference to each lot, is annexed to the answer. It is impossible to make out from this schedule in what manner the assessments were made. The papers do not disclose whether the expense of constructing the sewer exceeded four dollars for each lineal foot of it or not. In the schedule the amount assessed is sometimes a little more, and sometimes a little less, than two dollars per lineal foot of the lot assessed. The averments of the petition in this respect are as follows: "(3) Your petitioner is ignorant of the actual cost of said sewer, and as to the details of the expenses incurred for the work so ordered and performed, as aforesaid, and has no means of ascertaining the same. But the said city of Boston and its said superintendent of streets claimed, and claim and insist, that the said expenses amounted to four dollars, or more than four dollars, for each lineal foot of said sewer, and that the said expenses, to the amount of four dollars for each lineal foot of said sewer, constitute, by force and by virtue of chapter 402 of the Acts of the year eighteen hundred and ninety-two, the assessable cost of said work, to be repaid to said city by the owners of the several parcels of land bordering on the strip of land in which said sewer is made. (4) The said superintendent of streets has made, or attempted to make, an apportionment of the said alleged assessable cost to certain parcels of land, claimed and alleged by him to be the several parcels of land bordering on the strip of land in which said sewer is made, and has given notice thereof to your petitioner, so far as same relates to the several parcels of land owned by your petitioner, as hereinafter set forth; but your petitioner has no means of knowing or ascertaining whether the said apportionment is just and true, and in accordance with said act, or otherwise." The averments of the answer in this respect are as follows: "Now come the respondents, and for answer to the plaintiff's petition say that they admit a sewer was constructed in Railroad street, and the cost thereof assessed upon the estates benefited thereby, including certain land of the petitioner, as alleged in said petition," etc. In view, however, of the argument addressed to us, the want of a sufficiently definite answer is not very material, because it is not contended in argument that the assessments have not been made in literal compliance with the terms of the statute. The hardship of the case appears from the averments of the petition. The petitioner's land is alleged to be land of little value, which can be made valuable only by filling it, and then using it for the erection of buildings. The sewer is a large brick sewer, and is a part of a long main sewer designed principally for draining a considerable territory of valuable land situated at some distance from the land of the petitioner. To assess the cost of such a sewer, or the cost not exceeding four dollars per lineal foot of such a sewer, upon the petitioner's land, according to the proportion of the number of lineal feet of the boundaries of his lots on the strip of land in which the sewer has been laid to the number of lineal feet of the boundaries of all lots on said strip, is, he contends, grossly unjust. One contention is that the statute violates article 10 of the Declaration of Rights. But the present proceedings do not relate to the taking of the petitioner's land for the purpose of constructing the sewer, and to the payment of compensation therefor, but to the assessments upon the petitioner's land for the purpose of collecting, in whole or in part, the expenses incurred in the construction of the sewer. The strip of land in which the sewer has been laid was taken, as we understand, under other provisions of statute, presumably under Pub.St. c. 50, §§ 1-3. The assessments, although local, have been laid, by virtue of the taxing power of the legislature, in the method prescribed by St.1892, c. 402, and the amendments thereof. Howe v. City of Cambridge, 114 Mass. 388; Chapin v. City of Worcester, 124 Mass. 464; City of Boston v. Boston & A.R. Co., 170 Mass. 95, 49 N.E. 95.

It is argued that the statute provides for no appeal from the apportionment of the assessable cost of the sewer made by the superintendent of streets. If the superintendent in determining the assessments has committed any error of law, this may be corrected on certiorari, if material. Bowditch v. Superintendent, etc., supra; Brown v. Mayor, etc., 128 Mass. 282. The petitioner also can apply for an abatement under St.1896, c. 359, and perhaps under other provisions of statute. The principal objection to the statute is that it authorizes the cost of a sewer, not exceeding four dollars per lineal foot, to be assessed upon the owners of abutting land according to the proportionate length in feet of the boundaries of the different lots of land on the sewer, without regard to the value of the land or the depth or size of the lots, or the size of the sewer as adapted to the drainage of the lots; that the statute is arbitrary and absolute, and excludes everything in the nature of an adjudication with reference to each lot affected by the construction of the sewer. It is not contended that the present sewer cannot be used to drain the petitioner's lots, but it is contended that the land...