197 Mass. 292 | Mass. | 1908
These are petitions for a writ of certiorari to quash an assessment of betterments for the construction of Columbia Road in Boston. The cost of the improvement was $1,800,000, and the amount of the entire assessment was $296,448.69. The assessment was made under the St. 1906, c. 393, § 9. The order laying out the street and directing its construction was passed on August 31,1897. The work of construction was finished on May 6, 1905.
The first question is whether the statute referred to authorized the making of an assessment for this improvement. The statute is as follows: “ Section 9. This act shall not apply to any such improvement completed by said city before the passage of this act, nor to any such improvement ordered before the passage of this act so far as the act requires that said board of street commissioners shall estimate on the same day on which the order for the improvement is passed the benefit or advantage to each parcel of real estate from the whole or a part of the improvement, and this act shall not affect any assessment heretofore made therefor or the making of any assessment therefor, or the collection of any such assessment. All such improvements ordered to be made before the twenty-seventh day of June, nineteen hundred and two, the construction of which was not completed until after that date, arc to be assessed under this act or under chapter five hundred and twenty-one of the acts of the year nineteen hundred and two, but the omission to make any estimate of the benefit or advantage by an order passed the same day the improvement was ordered shall not in any way invalidate or affect the assessment.” This act (§ 2) and also the St. 1902, c. 521, which it superseded, required the street commissioners to estimate, on the same day on which the order for the improvement was passed, the benefit or advantage to each parcel of real estate from the whole or part of the improvement. Presumably all orders for such improvements made after June 27, 1902, contained such an estimate. Both parts of the quoted section relate to orders passed without such an estimate, and in that respect they seem to refer to improvements ordered under earlier statutes.
Standing alone, the first sentence of the section is ambiguous. It might mean that the act shall not apply at all to an improvement completed before the passage of the act, or it might mean
The petitioners allege that the statutes as to the method of making contracts and doing the work were not complied with, and contend that for this reason no assessment can be made. The statutes considered and the doings of the street commissioners in Warren v. Street Commissioners, 181 Mass. 6, were materially different from those in the present case. The St. 1894, c. 416, § 3, under which they acted in that case, provide that said board shall assess “a proportional share of said cost upon the real estate which said board shall adjudge receives any benefit and advantage from such laying out and construction, or either of them, . . . beyond the general advantages to all real estate in said city,” etc. This cost was the entire cost of the improvement, and the board proceeded to determine it, including the cost of a large amount of work done in violation of the statute, and to assess a proportional part of it upon the estates benefited.
The St. 1906, c. 393, § 5, is in part as follows: “ Said board within two years after the completion of any improvements specified in section two shall determine the value of the benefit or advantage aforesaid to each parcel of real estate beyond the general advantage to all real estate in the city, from the whole or a part of the improvement, shall determine as the assessable cost of the improvement such part, not exceeding one-half, as the board shall deem just, of the expenses incurred by the city for such whole or part of the improvement, . . . and shall assess on each parcel a proportional share of said assessable cost, not
The petitioners contend that, as applied to streets laid out and constructed under statutes enacted prior to the St. 1902, c. 521, the section under which the board acted is unconstitutional. It was decided in Hall v. Street Commissioners, 177 Mass. 484, 440, and Warren v. Street Commissioners, 187 Mass. 290, that special taxation upon land for peculiar benefits received from an improvement may be authorized after as well as before the expenditure is incurred, if in other respects such taxation is warranted. Numerous authorities were cited in support of these decisions. It appears in the present cases that in some of the lots assessed changes of ownership occurred after the street was laid out, and perhaps after the work of construction was finished, and before the assessment was made. It is contended that an assessment
The argument of the petitioners seems to disregard the fact that a tax of this kind is assessed upon the land, for the special benefit received by it, and not upon its owner. It is collectible only from the land. It is true that the owner usually pays it because of his interest in the land; but the assessment is made upon the property, without regard to where the ownership of it happens to be, or to whether it changed while the construction was going on or after it was completed. One buying land which has received special benefits from an improvement that has just been completed, but has not been paid for, is bound to know that it is liable to be specially taxed for benefits, just as he is bound to know, if he then first becomes a resident of the city or town, that he will be subject to general taxation to make up so much of the unpaid cost of the improvement as is assessed upon the general taxpayers. If there is a statute which subjects the property to a special tax when he takes his title, the liability is an encumbrance. Blackie v. Hudson, 117 Mass. 181. If there is no such statute, it is not technically an encumbrance. Maloy v. Holl, 190 Mass. 277. But in such a case the liability to special taxation, under a statute that may be passed for that purpose,'does not differ in principle from the liability upon one who becomes an inhabitant of a city or town which has contracted a large debt that must be paid by taxation, either under existing laws or other proper laws that the Legislature may pass for the purpose. One about to take up his residence in such a city or town may well consider the probability of large general taxation to
Petitions dismissed.