Chilson v. Mayor

Rugg, C.J. This is a petition for a writ of certiorari to quash a betterment assessment purporting to be laid under Spec. St. 1919, c. 208. The petitioners are some of the landowners upon whose estates betterments have been assessed. The respondents are the mayor and municipal council of the city of Attleboro, who made the assessment. The act in question empowered the cities of Taunton and Attleboro and the towns of Norton and Mansfield to acquire and operate the Norton, Taunton and Attleboro Street Railway. That street railway corporation owns about twenty miles of railway located in these four municipalities, approximately two miles of which lie within the boundaries of the city of Attleboro. Authority was conferred by § 1 of the act upon the four municipalities to “ subscribe for, purchase and hold shares of the capital stock, bonds and notes of ” the street railway company upon conditions there stated. — 199 — Authority was conferred by § 2 of the act upon the municipalities to “ purchase or take by right of eminent domain the franchise, rights and properties held or used by ” the street railway company upon compliance with terms therein set forth. Thus a choice between two courses was open to the municipalities: (1) by § 1 they could become the owners of the stock and bonds of the street railway company and through the corporation and its officers use its powers and whatever rights it had; (2) by § 2 they could exercise either the power of immediate purchase or the power of eminent domain and thus become the direct owners of the physical properties previously belonging to the street railway company and operate the railway accordingly. By option (1) the municipalities would become the virtual owners of a corporation and be bound by all the limitations and possess all the immunities of stockholders and bondholders of a 'corporation. The operation of the street railway would of necessity under this option be through the corporation. By option (2) the municipalities would become direct owners of all franchises and properties formerly owned by the corporation, possessing all the rights and powers and subject to all the obligations and liabilities incident to direct ownership of physical and intangible property. The operation of the street railway would under this option be vested directly in the municipalities and the corporation would be eliminated. The choice thus afforded to the municipalities was between two courses differing one from the other both in form and in substance, and involving dissimilar rights, powers, obligations and liabilities. The city of Attleboro, acting in conjunction with the other three municipalities, exercised the option thus offered and elected to proceed under § 1 of the act. The stocks and bonds of the street railway company were purchased. The share of the cost falling to the city of Attleboro was $30,000. The transaction was a purchase by the four municipalities of the stocks and bonds of an existing corporation. It was in no sense an acquisition, under the power of eminent domain or by immediate purchase, of the franchises, rights — 200 — and properties of the street railway under the authority conferred by § 2 of the act. The corporate entity of the street railway company continues without interruption or alteration. The stockholders and creditors of the corporation have changed. The corporation itself remains unchanged. ' Subsequently the municipal council of the city of Attleboro laid an assessment upon lands of the petitioners among others. The only authority for the assessment of betterments is in § 9 of the act. Its words, so far as now relevant, are, “ In case the said cities and towns-. . . shall purchase or take and operate the said street railway ... a portion of the purchase price, not exceeding fifty per cent, paid by any such city or town, may be assessed upon the owners of estates in such city or town specially benefited thereby . . . .” The authority to assess a betterment is conferred only in the event that the named municipalities “ shall purchase or take and operate the said street railway.” These vital words of the authority to assess betterments follow the words of § 2, wherein the power of eminent domain is conferred to “ purchase or take ” the assets of the street railway company. These words are significantly different from those of § 1, under which the municipalities have acted, wherein the authority conferred is to “ subscribe for, purchase and hold shares of the capital stock, bonds and notes ” of the street railway company. The word “ purchase ” is common to § 1 and § 2, but its context in the two sections is quite different. In - § 1 the reference is to a purchase of the “ shares of the capital stock, bonds and notes ” of the street railway. In § 2 the reference is to a purchase of “ the franchise, rights and properties held or used by the company.” The line of demarcation between the acquisition of the stocks and bonds of the corporation by private negotiation and purchase under § 1 and the acquisition of the franchises, rights and properties of the corporation either by purchase or eminent domain under § 2 is maintained throughout the act. In §§ 2 and 3, where reference is made to both methods, the words used are “ subscription,” “ purchase ” or “ taking,” combining thus the essential words — 201 — both of § 1 and of § 2. Provision is made in §§ 6 and 7 for the management of the street railway in case of purchase or taking, manifestly referring to the method of acquisition authorized by § 2. In § 8, where provision is made for the establishment and revision of fares, occurs distinct reference to the two different methods of acquisition. To recur to the operative words of § 9, the four municipalities did not “purchase or take ” and do not “ operate the said street railway.” They have purchased the shares of capital stock and the bonds of a corporation which itself continues to operate the street railway. The conclusion follows that as matter of construction of the act the authority to assess betterments was conferred under § 9 only in the event that the title to the property and franchises of the street railway company vested directly in the municipalities by the proceedings authorized under § 2 and does not exist in the event, which has occurred, of a purchase and holding qf the shares of capital stock and bonds under § 1. Practical considerations support this interpretation. Authority to assess betterments can be granted under the Constitution only when based on special and peculiar benefits to defined property. The assessment of a substantial part of the cost of an investment by a municipality in stocks and bonds of a private corporation forms a novel basis for a betterment assessment. Such. an investment partakes of the nature of a private business adventure. The mortgage securing the bonds of the company may be foreclosed. G. L. c. 160, § 55; c. 161, § 25. The corporation may sell its property to or consolidate with other companies under certain conditions. G. L. c. 161, §§ 62-69. A receiver may sell all its property. G. L. c. 161, §§ 135-137. Federal Trust Co. v. Bristol County Street Railway, 218 Mass. 367. In other ways it may be that financial reverses would wipe out the investment. The entire control of the street railway is left in the corporation and remains under the direction of its governing officers. It is subject to all the exigencies which, as appears from recent litigation before this court, surround the private operation of street — 202 — railways. See, for example, Donham v. Public Service Commissioners, 232 Mass. 309, Boston v. Treasurer & Receiver General, 237 Mass. 403. A special benefit of a permanent nature would not be likely to be predicated by legislative enactment upon such an insubstantial foundation. Sayles v. Board of Public Works of Pittsfield, 222 Mass. 93. Sears v. Board of Aldermen of Boston, 173 Mass. 71. Sears v. Street Commissioners, 180 Mass. 274. Weed v. Mayor & Aldermen of Boston, 172 Mass. 28. This is not one of those exceedingly rare instances where the corporate entity can be disregarded. See Montgomery v. Forbes, 148 Mass. 249. The statute itself involves continued existence and recognition of the corporation in the circumstances which have come to pass. Ownership by the municipalities of all the stock and bonds of the corporation does not affect the corporate individuality as separate and distinct from those who have title to its securities. Brighton Packing Co. v. Butchers Slaughtering & Melting Association, 211 Mass. 398, 403, 404. Marsch v. Southern New England Railroad, 230 Mass. 483, 498. Eastman Marble Co. v. Vermont Marble Co. 236 Mass. 138, 153. Osgood v. Tax Commissioner, 235 Mass. 88, 91. Bachrach v. Commissioner of Banks, 239 Mass. 272, 274. The assessment here assailed cannot fairly be held to have been ratified and validated by St. 1921, c. 176. That act simply empowers the municipal council of the city of Attleboro to abate the whole or a proportionate part of the assessments levied under the assumed authority of Spec. St. 1918, c. 187, Part I, and Spec. St. 1919, c. 208. A statute of such narrow purpose and carefully restricted phrase cannot be stretched to cover an intent which commonly is expressed by positive and unequivocal words. The case of Warren v. Street Commissioners, 187 Mass. 290, bears no resemblance to the case at bar. The fact that the petitioners have brought petitions for abatement of their assessments under § 12 of said c. 208 is no bar to the maintenance of the present proceeding.They might not be able to question the validity of the assessment in a petition for its abatement. American — 203 — Unitarian Association v. Commonwealth, 193 Mass. 470, 478. Compare Milford Water Co. v. Hopkinton, 192 Mass. 491, 498. They have a right by an independent proceeding to assail the validity of the assessment. There is no election of remedy under such circumstances. Corbett v. Boston & Maine Railroad, 219 Mass. 351. Frost v. Thompson, 219 Mass. 360, 369. Jennings v. Wall, 217 Mass. 278. Certiorari is a proper remedy to redress the wrongs of which complaint here is made. Bowditch v. Superintendent of Streets of Boston, 168 Mass. 239, 241, and cases collected. Boston & Lowell Railroad v. County Commissioners, 198 Mass. 584, 586. There is no estoppel against the petitioners arising from the delay of almost three years after the levy of the assessment before bringing this petition. No bar arises through loches. Ordinarily such delay would be fatal to a petitioner for certiorari. Byfield v. Newton, 247 Mass. 46, and cases there collected. The case at bar is not an instance where in the meantime expenditures have been made or obligations incurred, or where rights have been established or affected by the delay. The assessment was not authorized by law. It exceeded the power of the respondents. The delay affords no reason for allowing such an invalid assessment to stand. Hancock v. Boston, 1 Met. 122. Boston & Albany Railroad v. County Commissioners, 116 Mass. 73, 83. Writ to issue.