Dexter v. City of Boston, 176 Mass. 247

Dexter v. City of Boston

176 Mass. 247 | Mass. | 1900

Knowlton, J.

In its essential features this case is like Weed v. Boston, 172 Mass. 28, in which it was held that St. 1892, *251c. 402, is unconstitutional in its requirement that all expenses incurred in the making of a sewer in a highway or strip of land or other place in the city of Boston, to an amount not exceeding four dollars for each lineal foot of sewer, shall be repaid to the city as the assessable cost of the work, by the owners of the several parcels of land bordering on the highway or strip of land in which the sewer is made, and in its direction that this assessable cost shall be apportioned, to each parcel in proportion to the number of lineal feet which it measures on said highway or strip of land.

It is now settled law in this court, as it is in the Supreme Court of the United States, and in many other courts, that after the construction of a public improvement a local assessment for the cost of it cannot be laid upon real estate in substantial excess of the benefit received by the property. Such assessments must be founded on the benefits, and be proportional to the benefits. So far as there is anything in the early 'cases which seems at variance with this doctrine, it is controlled by the later decisions. Boston v. Boston Albany Railroad, 170 Mass. 95. Weed v. Boston, 172 Mass. 28. Sears v. Boston, 173 Mass. 71. Sears v. Street Commissioners, 173 Mass. 350. Norwood v. Baker, 172 U. S. 269. The principle involved has been so recently and so fully considered in the cases above cited that it is unnecessary to discuss it at length in this opinion. It was shown in Weed v. Boston that, as applied to the facts of that case, and of many supposable cases, the requirements of the statute might produce assessments upon some estates greatly in excess of the benefits received, and, as compared with other estates, greatly disproportionate to the benefits. For this reason the statute was declared unconstitutional. In determining whether a statute is unconstitutional, the question is not whether the result is harmful in the particular case, but whether the statute, according to its terms, will violate the provisions of the Constitution in its application to cases which may be expected to arise. The case then before the court furnished a demonstration of the injustice and deprivation of constitutional rights which might result from the enforcement of the statute. The present case illustrates in a similar way that the assessments on different lands made under this statute are not always proportional to the benefits. There is a great difference in value on account of the difference in grade between lands at different *252points along the line of the sewer, and there is the same kind of question that was referred to in Weed v. Boston in regard to an assessment upon land on the southerly side of Ashford Street, so called, where there is intervening land in private ownership between the strip taken in the private way called Ashford Street and the parcel on which the assessment was made. There is also an important fact which was wanting in the other case, namely, that the sewer turns at right angles where it enters Ashford Street, and runs on two sides of the parcel at the corner. As the assessment was required to be made according to the lineal measurement of the land along the sewer, that parcel, which receives but slight additional benefit from the turn in the sewer, is doubly assessed.

That part of the statute which directs the making of assessments in this way is unconstitutional and void. The action of the superintendent of streets in making the assessment rests on this part of the statute, and it is impossible to find anything in it that stands upon a valid part of the statute which is separable from the part that is objectionable. The assessment was, therefore, void, and the payment by the plaintiff, having been induced by compulsory process and made under protest, may be recovered back in this action. Sumner v. First Parish in Dorchester, 4 Pick. 361. Lincoln v. Worcester, 8 Cush. 55. Wright v. Boston, 9 Cush. 233, 241. Goodrich v. Lunenberg, 9 Gray, 38. Gerry v. Stoneham, 1 Allen, 319. Day v. Lawrence, 167 Mass. 371. Somerville v. Waltham, 170 Mass. 160.

This is not like a case where there is a mere irregularity in the proceedings, which must be taken advantage of by a writ of certiorari. Action under an unconstitutional statute is as if there were no statute. Fisher v. McGirr, 1 Gray, 1. Connecticut River Railroad v. County Commissioners, 127 Mass. 50, 57.

The fact that the collection was made under St. 1891, c. 323, §§ 16,18, by adding part of the assessment to the general tax of the plaintiff, does not affect his right to recover it back in this proceeding. It did not become a part of his general tax, but was separable from it. When a general tax is excessive by reason of overvaluation, or error in including property that is not assessable, the party is left to his remedy by an application for an abatement, and he cannot recover back the tax in an *253action of this kind. But the provisions of law which prevent recovery in such cases are not applicable to this assessment. According to the terms of the report there must be

Judgment for the plaintiff.