Workman v. City of Worcester

• Decision Date: 06 September 1875
• Citation: 118 Mass. 168
• Parties: Sarah P. Workman v. City of Worcester
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

118 Mass. 168

Sarah P. Workman v. City of Worcester

Supreme Court of Massachusetts

September 6, 1875

Argued October 8, 1874 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Worcester. Petition on the St. of 1867, c. 106, § 4, ^[*] for a jury, the petitioner alleging that she had been aggrieved by the doings of the mayor and aldermen of the city of Worcester in the assessment upon her of a sewer tax, which the respondent justified as laid under that statute. Trial in the Superior Court, before Brigham, C. J., who allowed a bill of exceptions in substance as follows:

The voters of the city voted to accept the St. of 1867, c. 106, on April 16, 1867. On January 19, 1872, the board of mayor and aldermen passed the following order: "That the sum of four hundred and fifty thousand dollars be assessed upon the persons and estates benefited, together with such sums as the mayor and aldermen may determine as entrance fees." On May 30, 1872, the petitioner's estate was assessed the sum of $ 437.75, as the proportionate part of the expenditure incurred by the city in constructing sewers under the St. of 1867, the petitioner's estate being adjudged by the mayor and aldermen to be benefited thereby.

The valuation of the estates assessed for this tax amounted on the general valuation lists, made by the city assessor in 1871, to $ 9,000,000. The estates for the purpose of this sewer assessment were divided into sixteen classes, and the sum of $ 450,001 was the whole amount of this tax assessed on the sixteen classes; the whole amount of the expenditure for sewers up to the time this tax was laid, was between $ 1,100,000 and $ 1,200,000. Mill Brook Sewer had been built at a cost of about $ 468,000; and the sixteen different classes were assessed at varying percentages on their several valuations, the percentage of tax in the petitioner's class being 4 1/4 per cent. The petitioner was served with notice of this assessment on May 31, 1872.

A sewer was made on Front Street in 1851, one on Main Street in 1855, and one on Elm Street in 1860.

The petitioner's house was on Elm Street, and no new sewer had been built on Elm Street, nor on any street adjoining the petitioner's land, or on her land, under the act of 1867; the petitioner could not drain from her land into any of the new sewers, except as the further facts in the case show. Since the laying of the Elm Street sewer in 1860, there was no alteration or change in the construction or manner of using the three old sewers in Front, Main, and Elm streets before 1867, and after that date only as the facts hereafter recited show connections to have been made with those in Main and Front streets, no change having been made in the Elm Street sewer up to the time of the trial. The Elm, Main, and Front Street old sewers formed a continuous and connecting line of sewers, from the times of their construction, and, since they were built as above, there have been no ordinances, votes, orders or decrees whatsoever passed by the city government or either branch thereof in relation to either of these three old sewers individually, or as a continuous line of sewers. The Front Street sewer emptied into Mill Brook, and had done so from the time of its construction, and it emptied at the time of the assessment at the same point into the new channel of Mill Brook. The petitioner entered her particular drain into the Elm Street Sewer, in 1864--65 or 1866, obtaining permission of the then mayor to do so; and she offered to pay for the same, but was told by the mayor, "No matter--let that go for the present."

The new Mill Brook sewer was built under decrees of the city council after the passage of the St. of 1867, and the vote of the city April 16, 1867, and prior to this assessment and after adjudication that its construction was necessary for purposes of sewerage, drainage and the public health. In this construction Mill Brook has been straightened, altered, deepened, paved and walled for over two miles, and for a considerable distance both above and below Front Street, has been arched over and covered in; and, at the point where the Front Street sewer has always entered Mill Brook, the bottom of the new Mill Brook sewer is some five feet lower than the bed of the old brook.

The respondent called the former city engineer, who had had charge of most of the work on the new sewers, and he testified that in very high water the water of Mill Brook used sometimes to back up into the Front Street sewer; that in storms he had known Main Street and Front Street cellars to be flooded to some extent by the sewers aforesaid in those streets, both before and after the construction of any of the new sewers under the St. of 1867, on account of being too small to carry off storm water; that he never knew any such flooding in Elm Street; that from the corner of Main and Elm streets to the petitioner's house was five hundred and thirty-four feet, and the elevation at the point where the petitioner's drain enters the Elm Street sewer was thirty-five to forty feet; that since 1867 new sewers have been built in Mechanic Street and in Foster Street, from Main Street to Mill Brook new sewer, that in Mechanic Street being connected in Main Street with the old Main Street sewer, and both tending to relieve the old Main Street and Front Street sewers from the former difficulty from storm water, and that since the construction of the said Mechanic Street and Foster Street sewers he never had known of complaint from flooding; that in the construction of sewers since 1867, several of the new sewers had been turned into the Main and Front Street old sewers, some of them before the Mechanic and Foster Street sewers were built, but they were all south of Elm Street, and made their junction with the old line of sewers lower down than the junction of Elm and Main streets. This testimony was not controverted by the petitioner.

The petitioner's counsel asked the judge to rule that on this evidence the petitioner was not benefited by the city's construction of sewers, and that her estate did not come into any class upon which the sewer assessment was authorized by the statute, and to direct a verdict accordingly. This request the judge refused.

The petitioner then introduced the testimony of several witnesses to the effect that her estate had received no actual and special benefit not common to all estates having access indirectly to Mill Brook, by the construction of sewers under the St. of 1867; but it was agreed by and between the parties that the petitioner's estate did not receive any actual and special benefit by the construction of the Mill Brook sewer and other sewers constructed under the St. of 1867, c. 106, which was not common to all estates having an access and right, by means of drains, to enter sewers communicating more or less directly with Mill Brook sewer.

The petitioner then asked the judge to rule as follows:

"1. That the St. of 1867, c. 106, was never legally accepted by the city of Worcester, and that this assessment was consequently void. 2. That under the vote of the mayor and aldermen to assess $ 450,000, if the said vote is legal, the assessment of a greater sum rendered the whole assessment void. 3. That upon the whole evidence, the petitioner's estate was not benefited by the construction of sewers under the St. of 1867, in any manner or in any such manner as to bring it within any class of estates liable to taxation under that statute." The judge refused so to rule, and ruled that the assessment was valid, and that the petitioner's estate received a legal benefit by the sewer built under the St. of 1867, which rendered her liable to the assessment complained of. Whereupon the petitioner's counsel claimed the right to go to the jury on the question of abatement, and to have the jury consider in assessing the tax what benefit the petitioner's estate had received; at the same time admitting that the petitioner's estate had been fairly and justly valued by the assessors, relatively to other estates assessed, that the tax assessed upon her estate was proportionate when considered as an assessment on the value of her real estate, in comparison with other estates assessed, and that in that view the tax was not inequitable or disproportionate.

The judge did not allow the petitioner to go to the jury on this proposition, in view of the foregoing admissions considered in connection with the request, and there being no other objections made to the assessment, directed a verdict for the respondent with damages for the full amount of the tax claimed, with interest at seven per cent. from the date when the tax was by the order made payable. The petitioner alleged exceptions.

Exceptions overruled.

T. L. Nelson & W. S. B. Hopkins, (G. H. Ball with them,) for the petitioner. 1. The St. of 1867, c. 106, was never legally accepted by the city. There is no special provision in the act as to the time when it, or any part of it, shall take effect, and it therefore went into operation on the thirtieth day next after the day on which it was approved by the governor. Gen. Sts. c. 3, § 6. See Opinion of Justices, 3 Gray 607; Kennedy v. Palmer, 6 Gray 316.

The act in question was approved March 29, 1867, and the vote of the city was taken April 16, 1867; so that the city could at that time only vote to accept what did not exist. The meetings at which the vote of the city was to be taken were unauthorized except by the act. No persons were authorized to call the ward meetings, except under that act. The act could not authorize anything, for it had no life itself. The provision for a vote of acceptance by the city within one year from the passage of the act was a provision...