William Carson v. Sewer Commissioners of Brockton

• Decision Date: 27 May 1901
• Docket Number: No. 249,249
• Citation: 45 L.Ed. 1151,182 U.S. 398,21 S.Ct. 860
• Parties: WILLIAM H. CARSON, Plff. in Err. , v. SEWER COMMISSIONERS OF BROCKTON
• Court: U.S. Supreme Court

182 U.S. 398

21 S.Ct. 860

45 L.Ed. 1151

WILLIAM H. CARSON, Plff. in Err.,

v SEWER COMMISSIONERS OF BROCKTON.

No. 249.

Submitted April 18, 1901.

Decided May 27, 1901.

This was a petition to the justices of the supreme judicial court for the county of Suffolk, for a writ of certiorari to the board of sewer commissioners of the city of Brockton, directing them to bring up certain proceedings connected with the assessment of taxes upon petitioner's land to the amount of $42.53, for the maintenance and operation of a public sewer, and for an order quashing the proceedings.

The petitioner alleged the assessment to be illegal and void:

1. Because the city ordinance does not provide for notice to or hearing of persons whose estates are affected thereby, in violation of the state Constitution;

2. Because the method of computing the sewer charges is unreasonable and disproportionate;

3. Because petitioner, having already paid for the sewers connected with his land, cannot be compelled to pay a special tax for the maintenance and operation of sewers from which he receives no special benefit;

4. Because such tax or sewer rental is in violation of the 14th Amendment to the Federal Constitution;

5. Because such tax is permissible only when founded upon peculiar and special benefits to the property so taxed, and then only to the amount of such benefits 6. Because lands assessed for the construction of sewers cannot be said to receive an additional and special and peculiar benefit from the general oversight and operation of the same.

By an act of the legislature of Massachusetts, passed in 1892 [chap. 245], 'to give greater powers to cities and towns in relation to the construction of sewers,' it was enacted as follows:

'Sec. 1. The city council of any city except Boston, or a town in which common sewers are laid under the provisions of §§ 1, 2, and 3 of chapter 50 of the Public Statutes, or a system of sewerage is adopted under the provisions of § 7 of said chapter, may by vote establish just and equitable annual charges or rents for the use of such sewers, to be paid by every person who enters his particular sewer into the common sewer, and may change the same from time to time. Such charges shall constitute a lien upon the real estate using such common sewer, to be collected in the same manner as taxes upon real estate, or in an action of contract in the name of such city or town. Sums of money so received may be applied to the payment of the cost of maintenance and repairs of such sewers or of any debt contracted for sewer purposes.'

Pursuant to this authority the city council of Brockton, on August 23, 1894, adopted an ordinance, of which the following is the material provision:

'Sec. 4. Every person or owner of an estate who enters his particular sewer into a common sewer shall pay for the use of such sewer an annual rental determined upon the basis of water service, as follows: For unmetered water service, $8; for metered water service, 30 cents per 1,000 gallons of sewage delivered to the sewer, the quantity so delivered to be determined by the meter readings taken by the water commissioners, but the annual charge shall in no case be less than $8, it being provided, however, that in cases where said commissioners shall deem the same to be equitable, a discount may be made, such discount to be determined by said commissioners and approved by the mayor and aldermen; and it being further provided that any such person or owner may place at his own expense a water meter, which shall be approved by the said commissioners, to measure the amount of water which does not enter the sewer.

'Such charges shall be collected quarterly, and shall constitute a lien upon the real estate using the sewer, to be collected in the same manner as taxes upon real estate, or in an action of contract in the name of the city of Brockton.'

The petition was denied, and petitioner sued out this writ of error.

Mr. William H. Carson in propria persona.

No brief filed for defendants in error.

Mr. Justice Brown delivered the opinion of the court:

This case involves the single question whether a municipal ordinance making an annual assessment upon property owners for the use of a common sewer infringes upon any provision of the Constitution of the United States.

The supreme judicial court of Massachusetts held that the petitioner received a special benefit in the use of the sewer for which he might be charged; that the city, by building the sewer and receiving a part of its cost from the petitioner, did not bind itself that the sewer should be maintained forever, or that the petitioner should be at liberty to use it free of further expense; that the charge for using it was a benefit distinct from that originally conferred by building it; that there was no charge unless the sewer were used; that the only questions were whether petitioner's sewer entered the common sewer, and what amount of sewage was delivered to it; and that, if the petitioner wished to be heard on either of these facts, he could resort to the courts; that the city council had a right to fix the charges without notice to the parties interested, unless, under the pretense of fixing an equitable rate, the ordinance should do what amounted to the taking or destruction of property.

The ordinance imposes an annual rental of $8 for unmetered water service, and for metered water service 30 cents per 1,000 gallons for sewage delivered to the sewer,—the quantity to be so delivered to be determined by the meter readings,—with the privilege to the commissioners of making a discount when equitable. As the supreme judicial court held that the municipality had power to adopt this ordinance under the public statutes of the commonwealth, and that such statutes were no violation of the state Constitution, we are concerned only with the question whether the petitioner was thereby deprived of his property without due process of law, or denied the equal protection of the laws within the 14th Amendment.

The validity of the legislative act is assailed upon the ground that no notice was required to be given to the property owner, nor provision made for a hearing, and that the authority given to the city council of Brockton to change the rate of sewerage charges and assessments from time to time manifested an intention on the part of the legislature to assess such property without regard to benefits. There is no doubt that, when land is proposed to be taken and devoted to the public service, or any serious burden is laid upon it, the owner of the land must be given an opportunity to be heard with respect to the necessity of the taking and the compensation to be paid by the city. Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Palmer v. McMahon, 133 U. S. 660, 33 L. ed. 772, 10 Sup. Ct. Rep. 324; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289, subsequently re-examined in this court in Spencer v. Merchant, 125 U. S. 345, 31 L. ed. 763, 8 Sup. Ct. Rep. 921.

Obviously these cases have no application to an ordinance which fixes beforehand the price to be paid for certain privileges, and leaves it optional with the taxpayer to avail himself of such privileges or not. As well might it be insisted that an ordinance which fixes water rates proportioned to the amount furnished is void because no notice is required to be given before such rate is fixed, or the taxpayer is assessed his proportionate charge under the ordinance. Where the use of such privilege is left optional with the taxpayer by his election to avail himself of it or not, he contracts with the city to pay the rental fixed by its ordinance, if he elect to use it. In such case there is no room for the question of notice. Where notice will avail nothing, no notice is required. Lower Kings River Reclamation Dist. No. 531 v. Phillips, 108 Cal. 306, 39 Pac. 630, 41 Pac. 335; Amery v. Keokuk, 72 Iowa, 701, 30 N. W. 780; Com. v. Lehigh Valley R. Co. 129 Pa. 429, 18 Atl. 406.

Thus in Hagar v. Reclamation Dist. No. 108, 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, it was said by Mr. Justice Field (p. 708, L. ed. p. 572,...