94 Mass. 223 | Mass. | 1866
In the consideration of the important questions raised in this case, it is necessary to have a clear understanding of the general scope and purpose of the act of the legislature under which the defendants have proceeded in taking the land of the plaintiff and ordering his buildings thereon standing to be removed, as alleged in the bill. Although the act itself does not in terms declare that it was passed in the exercise of powers granted to the legislature by any particu hr clause of tho
Taking this view of the purpose of the act, and of the- intent of the legislature in enacting it, we come to the specific objections to its validity which are urged by the learned counsel for
It is further urged as an objection to the validity of the s^ atute,
In considering this objection, it is to be borne in mind that it is not founded on any alleged illegality or inequality in ths mode of assessment prescribed by the statute, nor upon any denial of the right of the legislature to lay a tax on a certain sec-: tian or district of a city or town for the purpose of carrying into effect some local improvement of a public nature. These are distinct objections arising in other= aspects of the case, which will be considered hereafter. The point on which the present objection turns is, that the mode of assessment prescribed by the statute operates to take from the owner a portion of his property without due compensation. If this objection is entitled to any weight, it is because the principle of the assessment is erroneous. The error, if any, consists in rendering an owner of property, a portion of whose land has been taken for a public improvement, liable to assessment for any of that part of the expense thereof which has been incurred for the payment of damages to him as compensation for the appropriation of his property. But it seems to us that this proposition cannot be maintained without confounding rights and obligations which are entirely distinct and independent of each other.
The right of a party to receive a reasonable compensation foj
Some other objections to the rule prescribed by the sta tute
In regard to other minor objections to the provisions for compensation to owners of property, taken under the statute, which have been suggested in behalf of the plaintiff, it is sufficient to say that they seem to us unimportant and wholly insufficient to invalidate the proceedings or to entitle the plaintiff to equitable relief.
It remains for us to consider that branch of the plaintiff’s case which involves an inquiry into the validity of the assessment or mode of taxation prescribed by the statute, by means of which the expenses of the proposed improvement are to be defrayed
But there is another large class of expenditures for objects oi
We are greatly strengthened in this conclusion by the consideration that such a mode of assessment of taxes for similar objects has been adopted and carried into effect without doubt or question in this commonwealth, both under the colonial government and since the adoption of the constitution. As early as 1658 it was ordered by the general court of the colony that a certain way should be laid out through Roxbury to “ Boston Farms,” and power was given to impose the cost on “ all such of Boston or other towns as shall have benefit of such way.” 4 Mass. Col. Rec. pt. 1, 327. The Prov. St. 4 Wm. & Mary, ". 1, (Mass. Perp. Laws, 1,) which provided for the laying out of streets in the city of Boston, and also for regulating and enlarging narrow and crooked lanes and passages therein, enacted that the damages for land taken for such enlargement and regulation should be assessed by a jury and paid “ by the neighborhood or town ” “ in proportion to the benefit or, conveniency any shall have thereby.” A similar enactment was contained in Prov-St. 33 Geo. II. c. ’3, (Mass. Perp. Laws, 387,) which was an act “or rebuilding that part of Boston which had been laid waste by fire. It was thereby provided that a jury should view the streets
Although no case has arisen heretofore in this court which presents the precise questions raised in the present case as to the power of the legislature to authorize a tax to be assessed on estates in the mode provided by the statute under consideration, the principle on which the assessment is based has been repeatedly recognized and sanctioned by this court. The result of these decisions, and the conclusion to which our owii minds have been brought on this part of the case, may be stated to be, that taxes levied for public purposes of a local character are not unconstitutional, as being unreasonable and unproportional, solely because they are imposed only on a certain town or district, or ‘on person^ residing or owning property in a particular locality, and that an assessment made on persons in respect of their ownership of certain property which receives a peculiar benefit from the expenditure of the money raised by a tax, or by
We have thus far considered the objections to the validity of the statute as levying an illegal and unconstitutional assessment on the plaintiff and his property, assuming that his counsel are right in their position that the statute authorizes the defendants to take only a portion of the estate belonging to him, and compels him to submit to an assessment on the residue; in other words, that the tax is levied on his property against his will. But this construction of the statute leaves out of view the important provision contained in § 10. This requires the mayor and aldermen of the city of Boston to take the whole estate of each owner whose land abuts on the proposed new street, making full compensation therefor, with a right on the part of the owner to appeal to a jury for the assessment of damages, if he elects to surrender it to the city, instead of retaining such part as may not be required for the construction of the street, subject to the assessment to which it would be liable under § 6 for the expenses of the proposed improvements. Construing the provisions in connection with the previous sections, it seems to us that the legislature have in substance required the city to take the whole estates abutting on the streets which are to be widened and graded, in case it should be necessary for the completion of the work and the more easy adjustment of the damages. In the event that all the owners of the abutting estates should elect to surrender them, the entire cost of the work would fall upon the city, and if the estates, when sold, after the construction of the new street, should bring less than the whole cost of the work, the deficiency would be a public charge, to be defrayed by
Upon these grounds we are of opinion that the plaintiff shows no claim to equitable relief, and that the order must be
Bill dismissed.