White v. Gove
| Decision Date | 22 May 1903 |
| Citation | 67 N.E. 359,183 Mass. 333 |
| Parties | WHITE v. GOVE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. O. Childs and Harvey N. Shepard, for appellant.
C. F Choate, Jr., for appellee.
The principal question in this case is whether a certain assessment for the construction of a sewer, made under St 1892, p. 444, c. 402, is valid. Upon facts before the court in two previous cases this statute was said to be unconstitutional. Weed v. Boston, 172 Mass. 28, 51 N.E. 204, 42 L. R. A. 642; Dexter v. Boston, 176 Mass. 247, 57 N.E. 379, 79 Am. St. Rep. 306. In Lorden v Coffey, 178 Mass. 489, 60 N.E. 124, a similar statute was held unconstitutional. Lately it has been contended before us at different times that the decisions of the Supreme Court of the United States in French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, and the numerous cases which immediately follow it in the same volume, have not only changed the law as it was generally understood to be laid down in Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443, but have materially affected the rule in this commonwealth. It is to be noticed at the outset that these cases in the Supreme Court deal only with a question under the Constitution of the United States, while Weed v. Boston, ubi supra, was decided before Norwood v. Baker, and without reference to the Constitution of the United States, the statute being held to be in violation of the Constitution of Massachusetts, c. 1, § 1, art. 4.
It is difficult to understand what is the exact meaning of the majority of the court in French v. Barber Asphalt Paving Co., ubi supra, and in the cases that follow it, for they seemingly reaffirm Norwood v. Baker, and distinguish it from the cases then decided. In many state constitutions the authority given to the legislative body to enact laws establishing taxation is general, while in others, as in this commonwealth, the Constitution gives authority only 'to impose and levy proportional and reasonable assessments, rates and taxes.' Const. Mass. c. 1, § 1, art. 4. Whether in the later cases the Supreme Court of the United States was considering statutes founded on general legislative authority, while in the earlier case of Norwood v. Baker they assumed that the power was limited to the enactment of laws authorizing only such taxes as are proportional and reasonable, and whether the seeming difference between the earlier decision and the later decisions is due to that fact, we need not consider.
Questions in regard to the constitutionality of laws relating to taxes have frequently arisen in this commonwealth, and the test has always been whether the tax was proportional and reasonable. Oliver v. Washington Mills, 11 Allen, 268; Commonwealth v. Cary Improvement Co., 98 Mass. 19, 23; Holt v. City Council of Somerville, 127 Mass. 408.
As was pointed out in Sears v. Boston, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834, and as was held in many other cases before Norwood v. Baker was decided, if one is required to pay a special assessment upon his property in addition to the general assessment which he pays equally with every one else, this special assessment cannot properly be founded on anything but benefits to the property. If he pays his proper proportion of the general tax, and then pays a special assessment greater in amount than the benefit that he receives, his entire tax is excessive, unreasonable, and disproportional. Hence, under a constitution which requires that taxes shall be proportional and reasonable, a system which imposes upon the property, in addition to its proportional share of the general tax, a special assessment without an equivalent in benefit, is unconstitutional. We have no doubt of the correctness of our decisions which hold that special assessments upon property for the cost of public improvements are in violation of our Constitution, if they are in substantial excess of the benefits received. See Weed v. Boston, 172 Mass. 28, 51 N.E. 204, 42 L. R. A. 642; Sears v. Boston, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834; Sears v. Street Commissioners, 173 Mass. 350, 53 N.E. 876; Dexter v. Boston, 176 Mass. 247, 57 N.E. 379, 79 Am. St. Rep. 306; Hall v. Street Commissioners, 177 Mass. 434, 59 N.E. 68; Lorden v. Coffey, 178 Mass. 489, 60 N.E. 124. The question of difficulty in dealing with cases of this kind is, how far may the court interfere with the legislative determination of a method for making special assessments? Of course, if a statute shows on its face that it entirely disregards the relation of the benefits to the taxes to be assessed upon the respective estates, it is plainly unconstitutional. In many case, however, it is impossible to estimate the amount of benefit with absolute accuracy, and methods of determination must be adopted which are practicable, and which at the same time will give a reasonable approximation to accuracy. The selection of methods is primarily a matter for the Legislature, and much latitude must be allowed it in the exercise of its judgment and discretion in regard to a subject of this kind. It is only when its decision is plainly one that will be likely to result in taxation that is either disproportional or unreasonable that the court can interfere. So, in different cases, a great variety of methods have been sustained by the court as within the legislative authority. In Sears v. Boston, 173 Mass. 71, 53 N.E. 138, 43 L. R. A. 834, it was decided before the decision of the Supreme Court of the United States in French v. Barber, etc., Paving Co., ubi supra, that an assessment by the front foot of measurement on the line of the street was a reasonable way of making a tax proportional to the benefits from watering a street in a thickly settled part of Boston. On the other hand, it was held in Weed v. Boston and in Dexter v. Boston, ubi supra, that such a method was not a proportional or reasonable way of determining benefits from the construction of sewers to be built through streets or private lands in all parts of Boston. This was so held because cases might be expected to arise under the statute in which such a method would work great injustice, and the two cases referred to were illustrations of the fact that taxation under the statute would be far from proportional or reasonable. There might be other illustrations of the same fact, depending on different causes.
In Sears v. Boston, ubi supra, it was not intimated that the statute would be constitutional if it purported to justify an assessment by the front foot for watering streets in all parts of a city. There are rural regions or waste lands along public ways in most of the cities of the commonwealth where it would be difficult to discover any special or peculiar benefit to the landowners from the watering of the public ways. The law contemplates (St. 1897, p. 390, c. 419, Rev. Laws, p. 388, c. 26, §§ 25-27) that certain of the public ways will be watered at the expense of the city, and provides that the city 'may determine that certain other public ways or portions thereof shall be watered at the expense of the abutters thereon.' In making this provision the city is expected to provide for an assessment upon abutters only in those places where there is special benefit to their property from the watering of the way. In the opinion in this case it was said of the division by the board of aldermen: 'It is not shown that their determination in regard to it was improper.' If, in any city, it should be determined that the watering of a public way through a forest should be paid for by the abutters, there might be a remedy by certiorari for a decision without foundation in law. The constitutionality of the statute depends upon the fact that a classification is called for, and the provision for an assessment upon the abutters applies only to those places determined upon by the board of aldermen, where there will be special benefits from the watering.
The case of French v. Barber, etc., Paving Company, 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, and the cases following it, have not changed the law of this commonwealth as to the validity of this class of statutes in reference to the Constitution of Massachusetts. Nor was the case of Smith v. City of Worcester (Mass.) 65 N.E. 40, intended to change our law as stated in other recent decisions. The statute in question in that case has been in force many years, and, in the words of the opinion, 'as we may presume very great and costly improvements have been made and probably titles passed, in reliance upon authority which the statute purports to confer.' It is also said in the opinion...
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