170 Mass. 111 | Mass. | 1898
The Neponset River Valley Sewerage System was provided for by St. 1895, c. 406, and the petitioners were directed to construct, maintain, and operate it. The provisions of the statute are substantially like those of St. 1889, c. 439, under which the same petitioners have built and operated the North Metropolitan and the Charles River sewerage systems, and which were considered by this court in the cases of Kingman, petitioner, 153 Mass. 566, and 156 Mass. 361. The expense of construction and operation of each system is paid by the petitioners from money advanced from the treasury of the Commonwealth. The money so advanced for construction is the proceeds of a loan negotiated by the Commonwealth, to be paid at its maturity out of a sinking fund, to be made up to the Commonwealth by the city of Boston, and the towns of Dedham, Hyde Park, and Milton, by which municipalities the interest upon the loan and the expense of operating the system are also to be reimbursed. The loan will mature in the year 1935. The municipalities named are required in each year to repay to
The award apportions the payments required to meet the interest and sinking fund requirements which represent the cost of construction upon the basis of valuation, and the payments required to meet the annual cost of maintenance and operation upon the basis of population, with proper deductions in each instance for the valuation or population of such areas as cannot be drained into the system. This basis of valuation includes both the valuation of the real estate and of the personal property of the inhabitants. The proportions so fixed by the
The award was made on October 16, 1896, and pending its acceptance by the Supreme Judicial Court sitting in equity for the county of Suffolk, the town of Milton, on December 28, 1896, filed a motion alleging that the apportionment was unjust, unequal, and inequitable, and asking that the award be recommitted. In support of this motion, the town, on March 1,1897, filed further allegations of fact, which they prayed for opportunity to prove and verify. The question of the acceptance of the award was heard by Mr. Justice Morton, sitting in equity, no party objecting to the acceptance except the town of Milton, and the award was accepted, and the cause at the request of the town was reported to the full court for a review of the matters passed upon, so far as they may be open to the town. The report states that, for the purposes of the hearing before the single justice, it was assumed that the facts alleged by the town were true, and also that at the time of that hearing the portion of the Dorchester intercepting sewer which lies between its Central Avenue terminus and Granite Bridge had not been taken by the petitioners as a part of the Neponset River system, but remained the property of the city of Boston. The same state of things continued at the time of the hearing before the full court, and still continues.
The allegations of the town, which, for the purposes of the hearing at which the award was accepted, Mr. Justice Morton assumed to be true, are in substance these. That a part of the town containing about 2,224 acres, with a valuation of over eight millions of dollars and a population of about 1,751 persons, nearly one third of the whole population of the town, cannot be drained into the system, unless the portion above mentioned of the Dorchester intercepting sewer is taken and made part of the system. The town extends easterly to tide water, while Hyde Park, Dedham, and the West Roxbury district of Boston are distant from tide water. No part of the sewer is within the town, and large portions of the town are so located that the use of the sewer would be practically impossible. The district of
In brief, the town contends that the valuation of personalty ought not to be taken into account in fixing the proportions to be paid by the several municipalities, and also that its own location adjoining tide water, and its comparative area, population, number of dwelling-houses, real estate valuation, daily consumption of water, its present need of sewerage, present small amount of sewage and the slight expense by which it can be otherwise disposed of than through the Neponset River system, all show that the town of Milton should bear a less proportion of the cost of the system than either of the other municipalities, whereas its proportion fixed by the award is much larger than that of either of the other municipalities, and is over forty-five per cent of the whole cost, and, further, that its proportion of the expense of maintenance and operation is too large.
It is urged by the counsel for the petitioners, that all these matters might have been, and no doubt were, considered by the commissioners before making the award, and are not open upon the question whether the decree accepting the award shall be affirmed by the full court. It may be doubted whether there is anything in the statute of 1889, or in the practice of courts of equity, which allows objections to such an award to be taken for the first time by a motion to recommit, or to require us to consider them, without its appearing that the objections were urged and the alleged facts put before the commission. Nor do we now attempt to define what power we have in case of an award of a commission to which the Legislature has given the power to make such an apportionment of a public burden as may seem to the commissioners just and equitable, besides rejecting the award, recommitting it, or accepting it, upon examination of the award itself. We deem it well, however, in the present instance, in affirming the decree accepting the award, to consider upon their merits the matters urged by the town of Milton.
The Legislature, while saying that the commissioners might take certain matters into consideration in making their award, . yet provides that they shall make the apportionment in such a
In our opinion, the respondent has not shown that this conclusion of the commissioners was not sound and just. The Neponset River system was not established merely to add to the value of a certain tract of land, or to abate a certain present nuisance; but for more general benefits, coming, as was said in Kingman, petitioner, 153 Mass. 566, 578, from “ the probability of better health and greater personal comfort for the people at large,” and looking mostly to the expected future growth of the district in point of population and wealth.
The system is distinctly a public work, the cost of which the Legislature, within its well recognized powers, has seen fit to •impose on the four municipalities concerned in the award. -The doctrine that persons and municipalities who are required •to help in bearing a public burden shall do so in proportion to
The objection founded upon the fact that the portion of the Dorchester intercepting sewer before referred to has not yet been taken by the petitioners must be further considered. The award itself states that the, apportionment is framed on the assumption that the portion will become a part of the system, and that, if for any unforeseen cause the plan should fail to be carried out, a revision of the apportionment would be necessary. One of the facts alleged by the respondent is, that, unless this part of the intercepting sewer is taken, a part of Milton containing about 2,224 acres, with a population of about 1,751 persons, and a property valuation of over eight millions of dollars, cannot be drained into the system. Deductions for the population and the valuation of areas which it is physically impossible to drain into the system were rightly made in determining the proportions awarded, and we assume that such deductions should be made in respect of the valuation and population of this area, unless the plan of taking the portion of the intercepting sewer is to be carried out as assumed by the award. As the whole valuation of the town, as established by St. 1895, c. 90, is less than twenty-two millions of dollars, the deduction of over eight millions for the area mentioned would make a very great reduction of the proportion of the cost of construction to be paid by the town; and a deduction for the population of the same area would make a very sensible reduction of the town’s proportion of the cost of maintenance and operation. More than
So ordered.