This is a petition for a writ of certiorari to quash an assessment of the expense of watering streets in the city of Cambridge, made under the R. L. c. 26, §§ 26 and 27. The most important question in the case is whether the statute is unconstitutional, because it gives the owner of the property assessed no opportunity to be heard in regard to the assessment. If no such opportunity is secured to him by the statute, it is invalid as an attempt to take his property without due process of law. Sears v. Street Commissioners, 173 Mass. 350, 355, and cases cited. See also Norwood v. Baker, 172 U. S. 269; Adams v. Roanoke, 102 Va. 53, 63. But if the right to a hearing is given upon an appeal, or upon an application for an abatement, it is sufficient. Sears v. Street Commissioners, ubi supra, and cases cited.
It appears that one of the petitioners is the owner of a parcel of vacant, unimproved land, upon which a tax for watering streets to the amount of $19.84 was assessed. If application had been made to the assessors for an abatement and to the superintendent of streets for a recommendation, the petitioner would have been entitled to have this tax abated. It is contended that the assessment upon all the abutters in the city should be quashed because of this erroneous assessment.
In Sears v. Aldermen of Boston, 173 Mass. 71, in Stark v. Boston, 180 Mass. 293, in White v. Grove, 183 Mass. 333, and in Cheney v. Beverly, 188 Mass. 81, the subject of the assessment, at a certain rate per front foot, of lands abutting on a street was considered. In these,' and in numerous other cases, it is held that special taxation of this kind in substantial excess of the special benefits received is illegal. In the first two of these cases it was assumed that there might be occupied lands, abutting upon streets in remote places within the limits of a city, that would receive no special benefit from watering streets, and upon which a special tax for the cost of it could not legally be assessed. In White v. Grove, at page 337, we find this language: “ 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
It follows that, while full effect must be given in all ordinary cases to the legislative determination that an assessment by the front foot, where the conditions are similar, is as nearly proportional and equal as is reasonably practicable, if it appears that an assessment made in that way will impose upon any property a liability substantially in excess of the special benefits conferred, such an assessment cannot lawfully be made. In such exceptional cases, as was held in Stark v. Boston, ubi supra, if an assessment has been made erroneously it should be abated. That remedy will usually be ample to relieve from mistakes made upon streets running through lands occupied with buildings. In that case there was an attempt to recover back an assessment paid under protest. The court said of the remedy by abatement that it “ is the only one that can be availed of under the statute. . . . The landowner ought not to be permitted in proceedings for the enforcement of the assessment, or in a suit to get back the money after it has been paid, to show that no special or peculiar benefits were received.” The court was not considering whether, if there was an assessment in utter disregard of the purpose and intent of the statute, such as a failure to attempt a distinction between different parts of a city which were very unlike, and a charge upon abutters for watering streets through a long strip of waste land, the proceedings might be quashed on certiorari, according to the intimation in White v. Grove, ubi supra. We treat that question as undecided.
In the present case we have before us no assessments but those of the petitioners. The assessment covered all the streets of the city, but, except what appears in considering the assessments upon the land of the petitioners, we have nothing to show whether the
There were certain alleged irregularities in making the assessment. We are of opinion that the order approved April 6,1907, was a sufficient determination that all the public ways in the city were to be watered in part at the expense of the abutters, and that the fact that it was not made until after the order of the board of aldermen bearing date March 5, 1907, does not affect the validity of the proceedings. The expense was to be estimated under the statute, and the rate per front foot was to be determined in reference to the estimate. We are of opinion that the slight inaccuracy in the estimate and in the amount of the assessment, in reference to the amount which was afterwards expended, does not affect the validity of the assessment.
We are of opinion that the value of the water furnished by the city from its aqueduct, maintained at its expense, might be included as a part of the cost of watering the streets.
There was an irregularity in the action of the superintendent of streets in his failure to certify to the assessors, before the assessment, a list of the streets, and of the number of linear feet and the amount of the assessment on each estate, as required by the R. L. c. 26, § 26. But it appears that the assessors had in their office, before assessing the tax, the details for the assessment precisely like those which he should have certified, and they assessed the tax upon them. The failure of the superintendent to perform this duty did not affect the action of the assessors in making the assessment. As a writ of certiorari is not to be issued except when justice demands it, we are of opinion that this error does not require us to quash the proceedings.
Petition dismissed.