Butler v. City of Worcester

112 Mass. 541 | Mass. | 1873

Gray, C. J.

The St. of 1867, e. 106, manifests the opinion and determination of the Legislature that the ordinary provisions of the statutes for the construction of common sewers and the assessment of a portion of the expense of each upon the adjacent estates were inadequate to the needs of a large and rapidly increasing city, not situated upon any river or upon tide water • and that it was necessary to adopt a new and comprehensive system, by which the natural watercourses within the limits of the city of Worcester might be appropriated and adapted to the discharge of the sewage of the whole city, and a proportion of the cost of the extensive works required to carry into effect this purpose be assessed upon all the estates benefited thereby.

The case finds that Mill Brook runs through the lowest part of the populous portion of the city, affords the only way by which the sewage of the city can be conveniently carried off, and has from time immemorial been used by the town and city of Worcester and the inhabitants thereof for the purposes of sewerage, and that all the sewers of the city discharge directly or indirectly into it.

By the first section of the St. of 1867, c. 106, the city council of Worcester is authorized to lay, make, maintain and repair all such drains and common sewers as it shall adjudge to be for the public health or convenience; and the city and its citizens are to have the same rights and be subject to the same liabilities as if this were done under the Gen. Sts. c. 48, “ except as hereinafter provided.”

By section 2 the city council is expressly authorized to fix the boundaries of Mill Brook and certain other brooks emptying into it, to alter, clear out, widen, deepen- and straighten their channels, and to use and appropriate the brooks, cover them, pave them, and wall them in, so far as it shall adjudge necessary for the purposes of sewerage, drainage and the public health. The powers thus conferred extend to the whole of these brooks within the city. The report previously made by a committee of the city council is referred to in the statute, only by way of assisting in identifying the brooks named; and the fact that the earlier statutes of 1850, c. 191, § 4, and 1866, <?. 199, § 13, limited the similar authority thereby granted to a part of Mill Brook gives the greater significance to the more general words of the St. of 1867, c. 106, § 2.

The orders successively passed by the city council, appropriating and laying out continuous sections of Mill Brook as a main drain ind common sewer, changing and straightening its course, clearing out, deepening and paving the channel, walling it in, and covering it with a continuous arch for a portion of its length, and with bridges at the crossings of the streets over the rest, so that it should not obstruct the public travel, were within the authority conferred by that section. And the cost of all this work, as well as of constructing drains and common sewers in the neighboring streets under § 1, might properly be included in “ the expenditure of the city for drains and" sewers ” under § 4.

By section 3 the city council is further authorized to take and hold, by purchase or otherwise, such land, water rights, dams and other real estate, and so use, alter or remove the same, as it shall adjudge necessary for the purposes aforesaid. It would seem that the sum paid by the city to the owners of the Fox mill-dam, removed to make way for the Mill Brook sewer, was within the contemplation of this section, and might lawfully be deemed part of the same expenditure. But as the case does not show that any part of that sum was included in the amount levied by assessment, it is unnecessary to consider that point more particularly.

Section 4 provides that “ every person owning real estate upon any street in which any drain or sewer may be laid under or by virtue of this act, and upon the line thereof, or whose estate may be benefited thereby, shall pay to said city such sum as the mayor and aldermen shall assess upon him as his proportionate share of the expenditure of the city for drains and sewers; ” that the sum so assessed shall constitute a lien upon the estate for two years, and, if not paid within ninety days after notice, may be levied by sale of the estate ; and that any person aggrieved by the doings of the mayor and aldermen under this section may, at any time within three months after such notice, apply for a jury in the manner provided in the Gen. Sts. c. 48, § 6.

The Legislature evidently anticipated that the expense of altering the brooks into common sewers, in order to fit them for effectually carrying off the whole sewage of the city, would be so great, and the size and cost of the different drains leading into them, and required for the completion of the whole system of drainage, bo various, that it might be unjust to assess the cost of each sewer and drain upon the estates abutting thereon or immediately benefited thereby. It has therefore provided that such estates may be assessed a proportional share of the whole expenditure of the city for drains and sewers under the act. . '

It is now too well settled to require a discussion of the general proposition, that a statute authorizing the cost of a local improvement of this kind to be levied by assessment upon the estates benefited thereby, according to the judgment of the municipal authorities in the first instance, and allowing to any party, aggrieved by their estimate, the right to have it revised by a jury,' is within the constitutional power of the Legislature. Dorgan v. Boston, 12 Allen, 223. Jones v. Aldermen of Boston, 104 Mass. 461. People v. Mayor, &c. of Brooklyn, 4 Comst. 419. Brewster v. Syracuse, 19 N. Y. 116. Commonwealth, v. Woods, 44 Penn. State, 113. Willard v. Presbury, 14 Wall. 676.

It appears by the facts agreed that, before the assessment was laid of which the plaintiff complains, the several sections of the Mill Brook sewer had been nearly or quite completed, as well as a great number of drains and common sewers, directly or indirectly connecting therewith, in many streets of the populous portion of the city, and, among others, in Gold Street, upon which the plaintiff’s estate was situated, and that he, by permission of the city, entered a private drain from it into the common sewer in that street. He was therefore liable to be assessed under the statute for a proportion of the whole expenditure of the city for sewers and drains.

' If any land-owner could object to the validity of the laying out of the common sewers in the streets, for want of previous notice to him, this plaintiff could not, since he has entered his private drain into the one in front of his estate. Haskell v. New Bedford, 108 Mass. 208.

It is objected that the plaintiff and other parties assessed were entitled to notice and hearing, upon the question of the amount to be assessed upon them, before the tribunal that laid the assessment; and that the only notice and hearing were before the mayor and aldermen of 1871, but the assessment was made by the mayor and aldermen of 1872, who were not the same persons. But the statute does not require any notice to be given by the mayor and aldermen before laying the assessment, and fully secures the rights of any party assessed, by requiring notice to be given to him of the assessment when made, and allowing him to appeal to a jury if dissatisfied. Allen v. Charlestown, 111 Mass. 123. The question whether any hearing should be had before laying the assessment rested therefore in the discretion of the mayor and aldermen. The mayor and aldermen of 1871 gave public notice, to all parties liable to assessment under the statute, that it was intended to assess upon them “ their proportionate share of the expenditure of said city for drains and sewers according to law,” and that they might be heard on “ any objections which may be made to said assessment; ” and after such hearing determined that “ a portion of the expense of the sewers be assessed upon the property specially benefited,” and then referred the papers to the next board of aldermen. The plaintiff was not entitled as matter of right to be heard before the new board on the amount to be assessed upon his estate. His remedy, if he was dissatisfied with that amount, should have been sought by application to the mayor and aldermen for an abatement, or by petition for a jury as provided in § 4. Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89.

It is objected that the assessment was invalid, because it included estates which were not liable to assessment, and omitted estates that were liable. But the question whether the assessment was erroneous in either respect cannot properly be determined in this case, to which the owners of the estates affected are not all parties. If it was so erroneous, it may be revised on certiorari, but affords no reason why the owner of an estate which is liable to assessment should escape all liability. Le Roy v. Mayor of New York, 20 Johns. 430. Smith's Case, 1 Ventr. 66. Board of Works v. Vauxhall Bridge, 7 E. & B. 964.

The mayor and aldermen having adjudged that the plaintiff's and other estates liable to assessment were benefited, and that the sum assessed upon each was its proportionate share of the expenditure, the errors suggested in the mode of computation, if well founded, can only be revised by certiorari. All the estates are assessed according to their valuation, dividing them into several classes according to their value per foot, and assessing all those in each class at one ratio. The moderate variation in the percentage of the different classes, making the proportion of the assessment somewhat greater upon the estates of the less value per foot, and somewhat less upon those of the greater value, does not show that the entire scheme was so unreasonable, or operated so unjustly upon the plaintiff, that it can be declared to be wholly invalid.

The decisions of this court, cited for the plaintiff, are quite distinguishable. In Boston v. Shaw, 1 Met. 130, the point decided was that a city ordinance, (passed under the general power to make reasonable by-laws, and before cities had been authorized by statute to lay main drains and common sewers,) by which an assessment for the construction of a sewer, upon those individuals who should enter their particular drains into it, was laid according to the existing value of their estates, including the value of the buildings upon those already built upon, and only the value of the vacant lots upon which no buildings had been erected, was unreasonable and void. The cases of Downer v. Boston, 7 Cush. 277, and Wright v. Boston, 9 Cush. 233, arose under the St. of 1841, c. 115, authorizing the municipal authorities to make and maintain main drains and common sewers, and to assess a proportional part of the charge upon every person entering his particular drain into the sewer or receiving any benefit thereby; and the only point decided in either case was that an ordinance laying an assessment according to the value of the lands, independently of any buildings or improvements thereon, was valid. See also Springfield v. Gray, 12 Allen, 612.

The authority of the mayor and aldermen under the St. of 1867, e. 106, § 4, is not affected by the exercise by the city council of the power conferred by § 5 to issue scrip for the purpose of defraying the expenses and outlays incurred for the purposes named in the act.

This case does not involve the determination of the proper mode of assessing future expenses of laying new drains and sewers, or of repairing those already laid.

Judgment for the defendant.