Hall v. Street Commissioners

Holmes, C. J. This is a petition for a writ of certiorari to quash a sewer assessment laid under St. 1899, c. 450, § 3, which took the place of St. 1897, c. 426, § 7, declared unconstitutional in Sears v. Street Commissioners, 173 Mass. 350. The act of 1899, in the first part of § 3, enacts that the board of street commissioners “ at any time within two years after any new sewer or drain ... is completed, shall assess upon the several estates especially benefited by such sewer or drain, a proportional part of the cost thereof, not exceeding in amount the sum of four dollars per linear foot,” and" goes on to provide for a reassessment of any such assessment which shall have been found to be invalid and is unpaid, or which shall have been recovered back. This act took effect June 1, 1899. The sewer in question was built under an order of August 5, 1897, the woi’k being finished on April 5, 1898. There was an old sewer [438] in the street, but it was on the other side, no part of it was used in the new construction, and it fairly is to be taken from the respondents’ answer that they found it broken down and useless. It is objected to the assessment that the sewer was not a new sewer, that the act does not apply to a sewer already built, and that if it does it is unconstitutional for that and.other reasons. It is objected further, that the answer does not show that the petitioner has not paid for the sewer within a proviso further on in the section, but this and some other objections go on the footing that the action of the board in this case is to be referred to a later power to “ assess upon any estate heretofore or hereafter connected with a public sewer a reasonable part of the cost of construction thereof” subject to the proviso just referred to. As we are of opinion that the board acted under the words first quoted from the beginning of the section and not under this later power, we shall say no more about these other objections beyond adding that so far as they go on a failure of the answer to state matters obviously true with technical fulness, we should not grant a certiorari on that ground. We are of opinion that the sewer was a new sewer within the meaning of the act, and that it is sufficiently shown to have been so by the facts which we have stated. The suggestion that it is not a new sewer seems to have been an afterthought and contrary to the purport of the petition. In view of our opinion on this point and of the fact that the words of the act which we shall discuss require a' new sewer, it is unnecessary to consider whether the Legislature would not have had power to authorize an assessment for reconstructing an old sewer or a new part of an old system. See Sears v. Street Commissioners, 173 Mass. 350 ; Carson v. Brockton, 175 Mass. 242. We are of opinion in the next place that this sewer is within the words first above quoted from the act. It is true that the words “ within two years after any new sewer ... is completed ” taken by themselves would seem to refer to a completion in the future. But we have to consider the whole section and the circumstances. Later on, as we have said, there is a general power to assess upon any estate heretofore or hereafter connected with a sewer, about which we say nothing except that it shows that [439] the Legislature had past work in its mind. But what is more • important is that the section is enacted to replace the one which was held unconstitutional by this court, and its whole frame shows that it was intended among other things to enable the . city to collect the special assessment which it had failed to get under the earlier act. Indeed this is the petitioner’s argument, although aimed at a different conclusion. Taking this into account, and also that the section which we are construing was passed as an amendment to the act of 1897, we are of opinion that the words embrace at least sewers completed after the act of 1897 went into effect. We are not laying down a general rule of construction for amendments, but simply are construing this particular act as we think that the Legislature meant it to be construed. No doubt if the amendment in a new clause not repeated from the amended section, had read “ is hereafter completed,” the general rule would take “ hereafter ” as referring to the date of the amendment, not to the date of the act. Ely v, Holton, 15 N. Y. 595, 598. Moore v. Mausert, 49 N. Y. 332, 335. Matter of Peugnet, 67 N. Y. 441, 445. See Parsons v. Wayne Circuit Judge, 37 Mich. 287 ; Farrell v. State, 25 Vroom, 416, 423. Finally we are of opinion that the act of 1899 is constitutional, so far as it applies to this case. The greater part of the petitioner’s argument is made inapplicable by our decision that this was a new sewer and is within the opening words of the section. We see no objection to the statute in the fact that the statute does not apply to any sewer built before a certain date, it does not matter precisely what. Such a limit of liability by time is no more unreasonable or contrary to any principle of constitutional right than is a statute of limitations. Again, it is not unconstitutional to levy special assessments for sewers already built. One must not let one’s mind be led astray by the false analogy of executed consideration in contracts. Public works must be paid.for although they have been constructed before any tax has been levied on their account. If the tax otherwise is levied properly as a special assessment for betterments, then, in view of the fact that the benefit and payment both are compulsory, not matter of contract, a betterment already executed when the law authorizing the tax was passed [440] will sustain the tax as well as a work built with express notice that it is under the law. Butler v. Toledo, 5 Ohio St. 225. Howell v. Buffalo, 37 N. Y. 267, 273. Brighter v. Newark, 16 Vroom, 104. Brevoort v. Detroit, 24 Mich. 322, 326. 2 Dillon, Mun. Corp. (4th ed.) § 814. It is suggested that this statute is an attempt to exercise judicial functions and to revise the decision in Sears v. Street Commissioners. We perceive no such attempt except that the Legislature is trying now to give a valid authority where formerly it gave a void one. State v. Newark, 5 Vroom, 236, 240. Howell v. Buffalo, 37 N. Y. 267. It is urged that the method of assessment is bad as not being limited to the benefit received. It is unfortunate that the petitioner’s argument is directed against the later clause authorizing the board to assess a reasonable part of the cost upon any estate heretofore or hereafter connected with a public sewer. But we assume that he would wish to urge the same objection to the clause at the beginning of the section which we have decided to be applicable. That clause confines the assessment in terms to the estates especially benefited and limits it to a proportional part of the cost, not exceeding four dollars per linear foot, but does not limit it in clear terms to the special benefit received. We áre of opinion, however, that the word “ proportional ” as here used must be taken to mean proportional to the special benefit received. See Carson v. Brockton, 175 Mass. 242. We believe that we have dealt with all the objections to the assessment insisted on in the petitioner’s argument so far as they are applicable to our view of the facts and our construction of. the statute. Petition dismissed.