| Mass. | Jan 3, 1902
In Sears v. Boston, 173 Mass. 71" court="Mass." date_filed="1899-03-03" href="https://app.midpage.ai/document/sears-v-board-of-aldermen-6426648?utm_source=webapp" opinion_id="6426648">173 Mass. 71, it was held that the St. 1897, c. 419, was constitutional. The assessment for watering the streets in the present case was founded on the St. 1899, c. 366, which in its main features is like the former statute above referred to, although it contains an additional provision giving to every one aggrieved by action under it the right to be heard upon an application for an abatement, and requiring abatement to be made either of the whole or of a part of the charge, if the assessment is improper or excessive. The application may be made to the street commissioners within one month after notice of the charge has been’ given to the land
We are also of opinion that this section, taken in connection with the two sections preceding it, requires that the assessments shall he founded on special and peculiar benefits only, and shall be reasonable and proportional. While it is to be assumed that, under the first section, the board of aldermen in dividing the city into districts will have regard to the principles of law that govern such assessments, and will so arrange that the payment of a specified sum per linear foot will generally be just, there may be cases that call for a reduction, or for an abatement of the whole assessment. Section 3 is intended to cover all such cases, but they are supposed to be few and exceptional. It is, therefore, not unreasonable that the landowner should be left to make application in regard to them after notice of the charge has been given him, and this feature of the statute does not render it unconstitutional.
This remedy provided for the correction of possible assessments which otherwise would be erroneous, is the only one that can be availed of under the statute. If no application for an abatement is made, it is to be assumed that the assessment under the first and second sections is correct. The landowner ought not to be permitted, in proceedings for the enforcement of the assessment, or in a suit to get back the money after it has been paid, to show that no special or peculiar benefits were received.
The plaintiffs having failed to apply for an abatement of the assessment, cannot prevail in this action.
Judgment for the defendant.