153 Mass. 566 | Mass. | 1891
The constitutionality of the St. of 1889, c. 439, is attacked by the different respondents on several grounds.
The first objection is, that the object in view, which is to provide for the disposal of sewage from a number of cities and towns, is not of such a character that the Legislature can properly appropriate money in furtherance of it from the treasury of the Commonwealth. It is admitted that public money of the Commonwealth may properly be expended in aid of the construction of roads, bridges, canals, and railroads, to increase facilities for communication, and this has occasionally been done, from early times. By the Prov. St. of 1693-94, c. 22, 1 Prov. Laws, (State ed.) 158, a grant of ¿6150 from the treasury of the Province was made towards rebuilding and repairing the bridge over Charles River; and by the Prov. St. of 1699-1700, c. 11, 1 Prov. Laws, (State ed.) 383, a grant of £153 was made for the same purpose. In recent years, the statutes granting State aid to railroads are freshly in mind; for example, to the Western, St. 1836, c. 131; to the Troy and Greenfield, St. 1854, c. 226; to the Boston, Hartford, and Erie, St. 1866, c. 142; to the Williamsburg and North Adams, St. 1867, c. 321; and to the Lee and New Haven, St. 1868, c. 313. It is contended, however, that a statute for providing a system for the disposal of sewage does not fall within the same reason, and cannot be considered as providing for an object of general public utility, but that the benefits to be derived from it are essentially local in
Assuming that the respondents may so far represent the general public as to be entitled to raise this question, it is plain that the objection can hardly be considered as of great weight, since the decision in Talbot v. Hudson, 16 Gray, 417. It was there held, on the greatest consideration, that the Legislature might provide for the removal of a dam, by means of which a large tract of land situated in different towns, and owned by a large number of persons, was overflowed, and might provide for compensation out of the treasury of the Commonwealth to persons whose property was thereby injured; the court saying, at page 425, “It has never been deemed essential that the entire community or any considerable portion of it should directly enjoy or participate in an improvement or enterprise in order to constitute a public use, within the true meaning of these words as used in the Constitution.” The improvement which the statute of 1889 is designed to effect stands far stronger, as an object of general public utility, than that which was the subject of consideration in Talbot v. Hudson. It has for its purpose to promote the public health, to avert disease, and to prevent nuisances. The territory to be benefited according to the Report of the State Board of Health, to which we are referred, includes an area of one hundred and thirty square miles, and contains one sixth of the population of the State. The Legislature has declared that a system of sewerage to accommodate this territory and this portion of the people of the State is an object of public utility, such as warrants the expenditure or the advancement for the time being of money from the treasury of the Commonwealth. It is impossible for us to say to the contrary. The argument is made to us, that, if such an expenditure of public money is warranted, the Legislature might authorize an appropriation for the benefit of a single town, and construct and maintain forever a local improvement for such town. But in determining the power of the Legislature in a case like this, little assistance is obtained by imagining extreme instances of possible abuse of the power. Norwich v. County Commissioners, 13 Pick. 60, 62. Nor need we undertake to define how far the
It is further objected, that if the object contemplated by the statute is one of such general public utility that the public money of the Commonwealth may properly be expended or advanced for it, then the expense ought to be borne by the Commonwealth, and cannot properly be assessed upon certain particular cities and towns. But this objection rests upon too narrow a view of the powers of the Legislature, in respect to the proper distribution of the public burdens. The provision of the Constitution conferring these powers is as follows: “Full power and authority are hereby given and granted to the said General Court, from time to time to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this Constitution, as they shall judge to be for the good and welfare of this Commonwealth, and for the government and ordering thereof, and of the subjects of the same.” Const. Mass., c. 1, § 1, art. 4. It was said in Hingham & Quincy Bridge v. Norfolk, 6 Allen, 353, 358: “ Among the purposes for which it [this power] is to be exerted none is more essential than a wise and careful distribution of certain public burdens or duties. Of these, a leading one is the construction, support, and maintenance of roads and bridges.” The construction and support of a system for the disposal of sewage, like that provided for by the St. of 1889, fall within the same reason. Dingley v. Boston, 100 Mass. 544, 557.
The statutes and decisions which illustrate and establish the validity of such a distribution of the burden of local improvements are too numerous to be described separately; but examples may be cited. In some instances, a fixed sum or a definite
It is urged by the respondents as an objection to the view taken above, that the various cities and towns are to have no ownership in the property of the sewers and works- which they are required to pay for, and no right to use the same except under rules prescribed by the Legislature. No express authority is cited in support of this objection, and we see no valid ground upon which it can rest. A town is required by law to build highways, and to keep them in repair, but it has no separate ownership nor exclusive use of them. The highway sur-
The respondents further contend that the St. of 1889 is unconstitutional, because no standard or rule is prescribed for the commissioners who are to determine the proportions to be paid by the several cities and towns, according to which they shall fix the same. That is to say, the respondents object that the act is invalid, because it does not provide that the assessment shall be made upon the different cities and towns according to the benefits received by each, or according to any other prescribed standard.
The provision of the statute is, that this court shall appoint three commissioners, who shall, after due notice and hearing, and in such manner as they shall deem just and equitable, determine the proportion in which each of the cities and towns named therein shall annually pay money into the treasury of the Common wealth for the term of five years, and shall return their award into said court; and when said award shall have
It is not contended in distinct terms, and at this day it could not be successfully maintained, as a bald proposition, that the Legislature cannot delegate to commissioners, to be appointed by this court, the determination of the proportions of expense which each county, city, or town should be required to pay for a local improvement. There has been, indeed, a long continued course of practice from very early times, shown by numerous statutes and sanctioned by many decisions, in which such authority has been delegated. Sometimes this power has been intrusted to the county commissioners. Sts. 1834, c. 15 ; 1835, c. 56; 1841, c. 103; 1850, c. 215; 1854, c. 283; 1863, c. 88; 1864, c. 188 ; 1866, c. 265; 1867, c. 296; 1868, c. 80; 1868, c. 309, § 8, considered in Haverhill Bridge v. County Commissioners, 103 Mass. 120; 1869, cc. 266, 378; 1870, c. 219; 1871, cc. 38, 199; 1872, c. 129; 1874, cc. 265, 289, 325; 1875, c. 193. Sometimes to the court of quarter sessions, or to some other court. Prov. Sts. 1716-17, c. 5, 2 Prov. Laws, (State ed.) 44; 1759-60, c. 21, 4 Prov. Laws, (State ed.) 285; 1764-65, c. 23, 4 Prov. Laws, (State ed.) 740; 1768, c. 12, 4 Prov. Laws, (State ed.) 1023. St. 1782, May 7, 1 Mass. Spec. Laws, 27. Sometimes to the city council, or to the mayor and aldermen of a city. St. 1863, c. 107, considered in Springfield v. Cay, 12 Allen, 612. St. 1863, c. 191, considered in Howe v. Cambridge, 114 Mass. 388. In one statute, at least, to the board of railroad commissioners. St. 1869, c. 408, § 5, considered in New London Northern Railroad v. Boston & Albany Railroad, 102 Mass. 386. Sometimes to commissioners to be specially appointed by the Governor and Council. Prov. St. 1702, c. 11, 1 Prov. Laws, (State ed.) 506. St. 1870, c. 265, considered in Scituate v. Weymouth, 108 Mass. 128. And sometimes to commissioners to be appointed by this or some other court. Sts. 1820, c. 59; 1862, c. 177, considered in Hingham & Quincy Bridge v. County Commissioners, 6 Allen, 353; 1868, c. 309, considered in Salem Turnpike v. Essex, 100 Mass. 282; 1868, c. 322, and 1869, c. 272, considered in Dow v. Wakefield, 103 Mass. 267; 1869,
This ample, but by no means exhaustive, citation of precedents has been made for the purpose of showing how thoroughly the method has been adopted in Massachusetts of apportioning the cost of local improvements by delegated authority.
Assuming, therefore, that this method is within the proper scope of legislative power, it remains to inquire, in the case of a public improvement like that now under consideration, where the Legislature itself has designated the cities and towns upon which the burden is to rest, how far the Legislature must go in prescribing a rule or standard for making such apportionment upon and among the cities and towns so designated; or, to be more precise, whether a statute providing that the determination shall be made in such manner as the commissioners shall deem just and equitable, and subject to acceptance by this court, must be held to be insufficient and invalid.
In approaching this question, it is well to bear in mind the peculiar character of the public improvement which is provided for in the statute. In nearly all of the statutes allowing or requiring assessments, either upon property, persons, or municipal corporations, for local improvements, the object primarily in view has been the benefit to land. Even in such cases, legislatures and courts have not usually found it expedient to lay down any definite rule according to which the assessment or apportionment of the cost should be made; but in a case like the present peculiar difficulties arise, growing out of the nature of the improvement and of the objects sought to be accomplished. No doubt the Legislature might have dealt with the matter directly, and itself have fixed the proportion of the cost which each city or town should pay, and might change this proportion from time to time. No valid ground of complaint would be open to any city or town, if this course had been pursued. But
This conclusion is well supported by the practice which has prevailed, and the course of judicial decisions, in this Commonwealth. As already observed, these have chiefly related to improvements designed primarily to increase the value of land, and not adopted with special view to the health of the people. In a few instances the benefit to property has been prescribed as the basis of assessment. Examples of this are found in the Prov. St. of 1702, c. 11, 1 Prov. Laws, (State ed.) 506; and in the St. of 1869, c. 142.
More often, however, the assessment is to be laid upon persons, estates, cities, or towns which are found to be benefited, without any rule being prescribed that the assessments shall be in proportion to the benefits. In such cases, the selection of the
In other instances the statutes have made no reference at all to benefits, but have simply required that the assessments should be in proportion to value, or should be just and equitable, or something like that. Sts. 1863, c. 191; 1865, c. 159 ; 1867, c. 296 ; 1870, cc. 302, 303; 1871, c. 38; 1874, c. 265. See also St. 1863, c. 88.
In still other instances, assessments for local improvements have been authorized or directed with no rule or suggestion whatever to show on what principle they should be made. Prov. Sts. 1716-17, c. 5, 2 Prov. Laws, (State ed.) 44; 1764-65, c. 23, 4 Prov. Laws, (State ed.) 740 ; 1768, c. 12, 4 Prov. Laws, (State ed.) 1023. Sts. 1862, c. 177, the provision as to counties; 1865, c. 88; 1866, c. 265; 1868, c. 80; 1869, c. 378.
By the St. of 1834, c. 15, and the St. of 1835, c. 56, the county commissioners were authorized to lay a portion of the expense npon the county, without other limit than that in one case it was to be not more, and in the other case not less, than one half. In all such cases, it must have been assumed by the Legislature that the determination should be just and equitable or reasonable, and it would probably be no strained construction to hold that such a provision was implied, just as the law implies reasonable time in the construction of contracts where no time is specified.
The omission to prescribe a fixed rule for the assessment of the cost of local improvements has been vindicated in numerous decisions of this court. The case of Hingham & Quincy Bridge v. Norfolk, 6 Allen, 353, arose under the St. of 1862, c. 177, by which a turnpike and bridges were made a public highway; and commissioners to be appointed by this court were to award the damages, and also, by § 3, “to determine and decree in what proportions said amount shall be paid by the counties
The case of Dorgan v. Boston, 12 Allen, 223, arose under the St. of 1865, c. 159, providing that the expense of widening a street should be assessed upon the abutting estates in proportion to their value, as they should be appraised by the mayor and aldermen of the city when the improvements had been made. The whole principle of assessing the cost of local improvements upon abutters was attacked in the argument. The court, in the course of the elaborate judgment sustaining the validity of the statute, said, at page 237: “ Nor can it be contended that the Constitution, in regard to this species of taxation, furnishes any fixed rules of proportion, or gives any absolute standard by which to determine whether a particular tax is within the limits of the legitimate exercise of the power granted. Undoubtedly a very wide discretion was intended to be left to the Legislature as to the subjects and method of executing the authority conferred on them of imposing taxes for purposes other than those of a general nature; and yet the power is not wholly without limit.”
The case of Springfield v. Gay, 12 Allen, 612, arose under the St. of 1863, c. 107, authorizing the city council of Springfield to construct certain drains, and with the assistance of a competent engineer to determine what portion of the expense should be borne by the city, and what portion by the owners of real estate; the latter portion to be equitably and ratably assessed upon the owners. (§§ 3, 4.) No other rule for the assessment was given. An owner of land objected to the tax assessed upon him. The court, in sustaining its validity, said: “ The statute does not require that the assessments imposed on estates to defray the expense of building sewers should be assessed according to the benefits which each estate might receive from their construction. It prescribes no fixed rule or standard by which such assessments should be laid. The only limitation on the power of the assessors is, that they should be equitably and ratably assessed. The rule or basis of the assessment is left entirely to the judgment and discretion of the assessors.” (p. 615.) “ We can readily see that it would be difficult, if not impracticable, to make an assessment which would operate fairly and equally, based on an estimate of the benefits which each estate might derive from the construction of the sewer. These benefits would necessarily be conjectural and difficult of estimation.” (p. 616.)
Without further quotation from the language of decisions, it was also held that the assessment need not be in proportion to the benefits received, in Workman v. Worcester, 118 Mass. 168, 177; Keith v. Boston, 120 Mass. 108, 112; and Snow v. Fitchburg, 136 Mass. 183. Other elements which might be considered are mentioned in Commonwealth v. Newburyport, 103 Mass. 129,134; Boston Seamen's Friend Society v. Boston, 116 Mass. 181,183; and Snow v. Fitchburg, ubi supra. The power to delegate the determination to commissioners, and the general character of their investigation, are stated in Salem Turnpike v. Fssex, 100 Mass. 282; Dow v. Wakefield, 103 Mass. 267, 273; Scituate v. Weymouth, 108 Mass. 128; Brayton v. Fall Fiver, 124 Mass. 95; and Agawam v. Hampden, 130 Mass. 528.
It is further contended that the assessment provided for by the statute cannot be upheld, because it is to be levied and collected before the ascertainment of the cost by the actual completion of the work. But we are at a loss to see how a public work can be carried on unless the means are raised for current expenses before its completion; and there can be “no valid distinction in principle between a right to raise money for a specific object yet to be accomplished, and a right to raise it to defray the expense of the same object after it has been attained.” Lowell v. Oliver, 8 Allen, 247, 257. Carter v. Cambridge & Brookline Bridge, 104 Mass. 236, 239.
It is urged in behalf of the town of Stoneham, that it has no local sewers except a main drain, and that the system for the disposal of sewage will be of zip benefit to the town. The town may, nevertheless, be in need of, a system of local sewers, and may have one before the general system provided for by the St. of 1889 is completed. The weight of this objection is not for us, at this stage of the proceedings.
The special considerations urged in behalf of the town of Winthrop, growing out of the fact that it already has an established and satisfactory system of local sewers, discharging into the ocean, are also proper to be laid before the commissioners, but cannot be taken into account by us in the present hearing.
None of the objections taken to the validity of the statute being found to be valid, the petitioners are entitled to maintain their petition for the appointment of commissioners to determine the proportions which the several cities and towns are to pay, as provided in the statute. Ordered accordingly.
These cases were Barnes v. Dyer, 56 Vt. 469 ; Tide-water Co. v. Coster, 3 C. E. Green, 518 ; State v. Hudson Commissioners, 8 Vroom, 12, 19 ; State v. Street Commissioners, 9 Vroom, 190 ; People v. Detroit, 28 Mich. 228; and Thomas v. Gain, 35 Mich. 155.