Smith v. City of Boston, 194 Mass. 31

194 Mass. 31 | Mass. | 1907

Sheldon, J.

In view of the decisions of j;his court, it is not now disputed that the statutes under which the assessment in" question was laid were unconstitutional and void so far as they purported to authorize such an assessment. St. 1891, c. 323. Lorden v. Coffey, 178 Mass. 489. Harwood v. Street Commissioners, 183 Mass. 348. St. 1892, c. 418. White v. Gove, 183 Mass. 333. St. 1897, c. 426. Sears v. Street Commissioners, 173 Mass. 350. And it was decided in Dexter v. Boston, 176 Mass. 247, that under such circumstances a sewer assessment which has been paid, as here, under protest, may be recovered back in an action of contract. Such assessments have been not infrequently avoided on collateral proceedings. Lorden v. Coffey, 178 Mass. 489. Ahearn v. County of Middlesex, 182 Mass. 518. White v. Gove, 183 Mass. 333. These principles would be sufficient to entitle the plaintiff to recover if nothing more appeared.

But this assessment was made in August, 1898; and in July, 1904, one Harwood, the owner of other land affected thereby, brought a petition for a writ of certiorari to quash the assessment, upon the same grounds which are now relied upon ; and this court, though assuming the validity of those contentions, declined to issue the writ and dismissed the petition, holding that certiorari was not a writ of right, and that in view of the petitioner’s loches and the circumstances of that .case, substantial justice did not require the quashing of the assessment. Harwood v. Donovan, 188 Mass. 487." The defendant’s counsel now contends that the decision of that case was tantamount to a judgment sustaining the validity of the assessment by which all parties, including the plaintiff in the case at bar, are bound. He relies upon some expressions in the opinions of the court in the cases of Brewer v. Boston, Clinton & Fitchburg Railroad, 113 Mass. 52, 57, and Taber v. New Bedford, 135 Mass. 162,164. He argues further that the plaintiff must show that this assessment was void not only when laid, but also on the day of its payment in October, 1904, and that on this last date, though vulnerable at first, it had under the decision of this court in Harwood v. Donovan, ubi supra, become crystallized by lapse of time and general acquiescence into complete validity.

The fallacy of the defendant’s argument is that it rests upon the assumption that the court by its decision in Harwood v. Donovan sustained the validity of the assessment in question. But this is not so; on the contrary, the court assumed its invalidity and simply declined to quash it upon the request of that petitioner. If the assessment had been merely voidable and so good until it should be quashed, doubtless this result would have taken nothing from its validity and would have left it in full force and effect. But it was more than voidable; it was void from the beginning, as appears by the cases already referred to. The superintendent of streets had no jurisdiction to make this order. The effect of the decision in Harwood v. Donovan was simply to leave the assessment in its original position, not to endow it with any new strength. This order stands on exactly the same footing as an order made by county commissioners; and the distinction between an order or adjudication of such a tribunal which is only voidable and one which is utterly void was pointed out in the recent case of Ahearn v. County of Middlesex, 182 Mass. 518. In the opinion in that case Knowlton, C. J. said: “ It never has been held that proceedings wholly outside the jurisdiction of a board of county commissioners would be held good until set aside upon a writ of certiorari. The distinction lies between proceedings which are irregular, informal, and erroneous in matters within their jurisdiction, and those that are void because done without jurisdiction. It would hardly be contended that action of such a tribunal under an unconstitutional statute would be held unimpeachable in collateral proceedings.” In that very case the court had declined to quash the proceedings of the county commissioners upon a petition for a writ of certiorari; Watertown v. County Commissioners, 176 Mass. 22; and yet it overthrew their order upon a collateral proceeding in the case just referred to of Ahearn v. County of Middlesex, 182 Mass. 518.

The defendant has properly not claimed that it is of any consequence whether the actual benefit to the petitioner’s land from the construction of the sewer did or did not exceed the amount of the assessment, or that there is any materiality in the fact that a person claiming under the plaintiff has since the rights of the parties became fixed made use of the sewer. And it should be added that this special tax has not been, if it could have been, reassessed under St. 1902, c. 527, and no question arises as to what the effect of such a reassessment would have been. Warren v. Street Commissioners, 187 Mass. 290. Maloy v. Holl, 190 Mass. 277.

Exceptions overruled.