Parsons v. City of Worcester

234 Mass. 108 | Mass. | 1919

De Courcy, J.

These petitions were brought under St. 1867, c. 106, § 4; one to revise an assessment for a sewer laid in Armandale Street, and the other to revise two assessments for a sewer laid in Apricot Street. The cases were referred to an auditor under an agreement that his findings of fact should be final. Among the findings was one that there was included in the assessments “a proportionate part of the salary of the superintendent of sewers, clerical services, and other ordinary and usual overhead expenses of the sewer department.” He also found that in laying out the sewers the sewer department “hired” an excavating machine from the water department of the city, and allowed the water department a fair and reasonable compensation for its use. By appropriate requests for rulings the question was raised whether such expenses could legally be included in the cost on which the petitioner was assessed.

The city of Worcester is not subject to the general laws relating to sewers. It lays, maintains and assesses for them under a special act, St. 1867, c. 106. Section 4 of that statute provides, “Every person owning real estate upon any street in which any drain or sewer may be laid under or by virtue of this act, and upon the line thereof, or whose real estate may be benefited thereby, shall pay to said city such sum as the mayor and aldermen shall assess upon him as his proportionate share of the expenditure of the city for drains and sewers.” It was said by this court in Clark v. Worcester, 125 Mass. 226, 232, ". . . the assessment under § 4 is an assessment, upon the several classes of estates, of a proportionate share of the expenditure of the city for drains and sewers, and not an assessment for the particular benefit derived by any estate from any particular sewer. It is not based upon the peculiar and special benefits of each estate.” And see Butler v. Worcester, 112 Mass. 541; Workman v. Worcester, 118 Mass. 168. In Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232, where the statute was given a more restricted interpretation, it was said (page 234): “. . . when the Legislature has contemplated a certain region and may be supposed to have acted in view of a specific scheme, there is no doubt that within reasonable limits it may determine that the cost of an improvement shall fall upon a designated district and may fix the principles upon which the cost shall be apportioned. [[Citing cases.]] It may deal with the whole improvement as a unit and charge those assessed with a share of the total expense” and (page 235) “When the Legislature has determined that the cost or a portion of it shall be thrown upon a designated region, the determination must be assumed to have been reached on constitutional principles, unless the court can see that it was unreasonable. On that assumption the right of individual owners within the designated region is narrowed. When they go before a jury they may contest the apportionment, but they cannot show that they have received no benefit at all. That the Legislature has decided.” To what extent the petitioner under this particular statute can inquire into the amount his land was benefited need not now be determined. We assume that he has a right to question the items of “expenditure of the city for drains and sewers.” It is plain, however, that the use of an excavating machine is a proper item of expense, and the fact that it was "hired” from another department of the city is immaterial, in view of the finding that no more than a fair price was charged for its use in the work on these sewers. In principle this is within the decision of Corcoran v. Aldermen of Cambridge, 199 Mass. 5, where the validity of an assessment of the expenses of watering streets was in issue. It was there held that the value of the water furnished by the city from its aqueduct, maintained at its expense, might be included as a part of the cost.

Undoubtedly the mayor and aldermen could include as proper items of the cost of construction such incidental expenses as engineering and clerk hire, necessary for the performance of the work. In our opinion there is no reason in principle for excluding these items merely because the city employed the men to attend to this and other similar work. In view of the finding for the defendant, we assume that the “ other ordinary and usual overhead expenses of the sewer department” included in the cost, embrace only necessary expenses actually connected with these particular sewers, and such as unquestionably would be proper elements of the cost of construction if employed and provided for this work alone. Where the actual time devoted by these employees to the work in question is determined, the proportion which the time so spent bears to the whole time for which these employees are paid can be easily computed. The weight of authority seems to be in favor of this view. In re Petition of Lowden, 89 N. Y. 548. Gibson v. Chicago, 22 Ill. 566. Burns v. Duluth, 96 Minn. 104. Stou v. Common Council of Kingston, 39 App. Div. (N. Y.) 80. Contra, see Longworth v. Cincinnati, 34 Ohio St. 101; and see Smith v. Portland, 25 Ore. 297.

Accordingly we are of opinion that there was no error in the refusal of the court to give the ruling requested in the case of the Armandale Street sewer, and none in the refusal to give the second and third rulings requested in the case relating to the Apricot Street sewers.

In the petition to revise the assessments for the sewers laid in " Apricot Street, there exists another question, raised by the petitioner’s first and fourth requests for rulings. The land of the petitioner admittedly is within the taxing district of these sewers. Two conduits were laid, one for house sewage and the other for drainage of underground and .surface water. Even assuming it to be material that the petitioner does not now need the surface water conduit for the drainage of his land, the auditor has found that the benefit to the land by the construction of said sewer “ equals or exceeds the amounts of said assessments, and that said premises can be connected with said sewer.” The -fact that

__________—'the city authorities saw fit to construct separate conduits to carry house sewage and surface water rather than to use one large conduit for both, plainly does not invalidate the assessments. The city had adopted this general plan for its sewage system at a time prior to the construction of the Apricot Street' sewer; and the auditor expressly finds that “these two conduits constitute, together, one system of drainage and sewage disposal.”

The petitioner now questions the validity of this assessment because of the auditor’s finding, “that the city of Worcester is required by law to purify its sewage before turning the same into the Blackstone River, and that said dual system of sewers was adopted as a measure reasonably necessary to so purify the sewage.” Presumably the auditor referred to St. 1886, c. 331, although it is not mentioned. That statute authorized and required the city of Worcester to purify the sewage discharged into Blackstone River through Mill Brook, under the authority of St. 1867. As interpreted in Harrington v. Worcester, 186 Mass. 594, St. 1886 was “a measure in the interest of the general public, looking particularly to the protection of the health of the people living near the Blackstone River;” and in carrying out this public duty the city of Worcester acts in part at least, as an agency of the government. See also Rome v. Worcester, 188 Mass. 307. 'Whether the city has power to levy an assessment for expenditures incurred in carrying out this statute need not be considered. As we construe the record in these cases no attempt was made to levy assessments under the 1886 statute. Those here in question were levied under St. 1867, c. 106; the petitions are expressly brought under § 4 of that act; and the brief of the petitioner begins with the statement that the petitions were brought to revise assessments laid “under the aforesaid act” of 1867. Nor can we assume that the city authorities included in these assessments any elements of expenditure that in fact were incurred in carrying out the requirements of the 1886 statute. As already stated, the two conduits constituted a single system of drainage and sewage disposal, and the work done in Apricot Street was in accordance with the general plan adopted by the city for the construction of its sewers.

No error is disclosed in the refusal of the trial judge to rule as requested by the petitioner. In each case the entry must be

Exceptions overruled.