Bigelow v. City of Boston

120 Mass. 326 | Mass. | 1876

Mobton, J.

The only question raised by this bill of exceptions is as to the correctness of the ruling that the burden of proof was on the petitioner to prove that he was aggrieved by the adjudication and assessment by the board of aldermen, and that his land was not benefited to the extent adjudged by the board.

We are of opinion that this ruling was correct. The petition to the Superior. Court, provided for by the St. of 1871, c. 382, § 7, is in the nature of an application for the abatement of a tax. Boston Seamen's Friend Society v. Boston, 116 Mass. 181. It is not like an appeal at common law, which vacates the judgment appealed from and reopens the whole case in the appellate court. Upon this petition the Superior Court has no power to increase the tax assessed upon the petitioner; the only authority it can exercise is to abate or reduce the assessment if it is shown to be excessive. Lowell v. County Commissioners, 3 Allen, 546. If for any reason the petition for an abatement is not prosecuted, the original assessment stands and creates a lien upon the land. The petition alleges that the assessment is excessive. Upon chis issue the petitioner is the plaintiff or actor; he has the affirmative, and the burden of proof is upon him to maintain his allegations.

*328The petitioner has argued the point that the board of aldermen had no authority to make the assessment in question; but this point was not raised in the Superior Court and is not involved in the decision of these exceptions. If, as is now claimed by the petitioner, the action of the board of aldermen was without authority and all the proceedings upon his petition in the Superior Court were coram non judice and void, he was not aggrieved by the ruling that the burden of proof was upon him. His right to test the validity of the action of the board of aider-men in the .proper mode is not affected by the ruling. We are not required to consider this question in this case, in which no judgment can be rendered, quashing or vacating the proceedings of the board of aldermen. The legality of their action should be tried by certiorari, or some other proper mode of proceeding.

Exceptions overruled.