Workman v. City of Worcester

118 Mass. 168 | Mass. | 1875

Gray, C. J.

1. By virtue of the Gen. Sts. c. 3, § 6, the St. of 1867, c. 106, like all other statutes of the Commonwealth, took effect on the thirtieth day after the day of its passage, unless and except so far as a different time was prescribed in the act itself. By § 6 of the St. of 1867, the act was to be void unless approved by a majority of voters at ward meetings “ within one year from the passage of this act.” Such acceptance might therefore be at any time after the passage of the act, even before the expiration of the thirty days. Johnson v. Fay, 16 Gray, 144. Commonwealth v. Bennett, 108 Mass. 27. The act therefore, having been duly accepted at meetings held on the eighteenth day after its passage, took effect under the general law on the thirtieth day.

2. The excess of a single dollar in the amount actually assessed, over the four hundred and fifty thousand dollars previously determined by the mayor and aldermen as the amount to be assessed, is too trifling a variation to affect the validity of the assessment. A case can hardly be imagined which would more imperatively call for the application of the maxim de minimis non curat lex.

3. The St. of 1867, c. 106, § 4, authorizes the mayor and aider-men to assess a proportionate share of the expenditure for drains and sewers under this act, not only upon 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, but also upon every person “ whose real estate may be benefited thereby.”

It appears, by the facts proved at the trial and not controverted, that the plaintiff’s estate is on the line of Elm Street, and that her private drain originally entered into the Elm Street sewer, which discharged through the Main Street and Front Street sewers into Mill Brook j that before the construction of the Mill Brook sewer, the sewers in Main Street and Front Street were sometimes choked up and the cellars in those streets flooded; and that this evil was cured by the construction of the Mill Brook sewer and of other sewers connected therewith under the St. of 1867; the bottom of the new Mill Brook sewer being five feet lower than the bottom of the old brook at the entrance therein of the Front Street sewer.

The Mill Brook sewer, constructed under the St. of 1867, having been substituted for Mill Brook in its natural condition, and the plaintiff now discharging her private drain through the connected line of sewers into Mill Brook sewer, the presiding judge rightly refused to rule as matter of law, as requested by the petitioner, that upon the whole evidence her estate was not benefited by the construction of sewers under the St. of 1867 in any such manner as to bring it within any class of estates liable to taxation under that statute. Butler v. Worcester, 112 Mass. 541. Soady v. Wilson, 3 A. & E. 248; S. C. 4 Nev. & Man. 777. St. Katharine Dock v. Higgs, 10 Q. B. 641.

His further ruling that the petitioner’s estate received a legal benefit from the construction of the sewers under the St. of 1867, which rendered her liable to the assessment complained of, can only be considered by this court as applied to the petitioner’s request, which was for a ruling that she was not benefited as matter of law, not that the question whether she was or was not benefited should be submitted to the jury. .

4. The only other position asserted by the petitioner at the trial was “the right to go to the jury on the question of abatement, and to have the jury consider, in assessing the tax, what benefit the petitioner’s estate had received; at the same time admitting that the petitioner’s estate had been fairly and justly valued by the assessors, relatively to other estates assessed, that the tax assessed upon her estate was proportionate when considered as an assessment on the value of her real estate, in comparir son with other estates assessed, and that in that view the tax was not inequitable or disproportionate.”

We are of opinion that the refusal of the presiding judge to allow the petitioner “ to go to the jury upon this proposition in view of the foregoing admissions considered in connection with the request, and there being no other objections made to the assessment,” affords the petitioner no ground of exception.

This is not like a case under the betterment laws, in which the amount of the benefit to each estate is to be ascertained, and is capable of exact estimation without regard to other estates. It is more analogous to the case of ordinary taxes, in which all the estates belonging to the class liable to assessment are to be assessed in proportion to their just value. Downer v. Boston, 7 Cush. 277. Wright v. Boston, 9 Cush. 233. Com. Dig. Sewers E. 5.

As already observed, the estates to be assessed under the St. of 1867, c. 106, § 4, include all estates upon the line of any street in which any drain or sewer is laid, as well as all other estates which may be benefited thereby. To ascertain the exact degree of benefit conferred upon each particular estate would be very difficult, if not impracticable. The more reasonable and the usual rule in cases of this description is to regard the value of the estates assessed; and the statute contains nothing which manifests the intention of the Legislature that the degree of the benefit to each estate should be the guide; but leaves the largest discretion to the mayor and aldermen to assess upon the owner of each “ his proportionate share of the expenditure of the city for drains and sewers.”

The similar act, authorizing the city of Springfield to construct drains, provided that the extent of territory benefited thereby, and the proportion of the expense thereof to be borne by the owners of real estate and by the city respectively, should be determined by the city council, with a right of appeal to a jury, as in the case of laying out highways; and that the portion of the expense to be borne by the owners of real estate within the district adjudged to be benefited should be equitably and ratably assessed upon them by the board of assessors, with a right in any person aggrieved to appeal to' the county commissioners as in the case of ordinary taxes. St. 1863, c. 107, §§ 2-4. The power given to the jury in that statute extended only to determining the proportions to be assessed on the landowners and to be paid by the city respectively, leaving the appeal of each owner aggrieved by the amount assessed upon his estate to be decided by the county commissioners. Patton v. Springfield, 99 Mass. 627. And in Springfield v. Gray, 12 Allen, 612, the court was of opinion that it was not within the authority conferred on the county commissioners to go into the extent of the benefit which an estate had derived from the construction of the contemplated sewer. It may indeed be doubted whether that case was brought before the court in a proper form by a bill in equity. Brewer v. Springfield, 97 Mass. 152. Loud v. Charlestown, 103 Mass. 278. Bow v. Smith, 9 Mod. 94; S. C. 2 Eq. Cas. Ab. 206. But no objection was taken to the form of the proceeding, and the case was decided upon its merits.

It having been thus decided that under the Springfield Sewer Act neither the jury nor the county commissioners were authorized to determine the degree of the benefit conferred upon any particular estate, and the jury, under the Worcester Sewer Act, now in question, having no powers which were not conferred by the former act either upon the jury or the county commissioners, it follows that it was not open, upon appeal from the assessment by the mayor and aldermen, to inquire into the degree of benefit to the petitioner’s estate by the construction of the sewer, and that she has no ground of exception to the ruling at the trial.

Exceptions overruled.