Crofts v. Board of Assessors

Wait, J. These are three petitions for certiorari. The petitioners in the first two are the same. They seek by proceedings, in the first petition against the board of assessors, and in the second against the mayor and city council of North Adams, to annul action taken in assessing upon the several petitioners certain sums for paving a way in North Adams. The petitioners in the third, brought against the mayor and city council, seek to annul action in assessments for the construction of a sidewalk along said way. The returns show that the assessments for paving and edgestones for the purpose of paving were made under authority claimed to be derived from St. 1897, c. 75. No contention is made that they are valid unless so authorized. The petitioners assert that the statute has been repealed by G. L. c. 80, § 17, and the legislation codified therein; and that, if not so repealed, the act is, none the less, nugatory for the reason that it is unconstitutional. St. 1897, c. 75, approved February 18, 1897, entitled “An Act to authorize the city of North Adams to grade and pave its streets and to issue bonds or notes therefor,” by § 1 provided that “The mayor, and the city council of the city of North Adams by a two thirds vote of all its members, whenever they adjudge that the public convenience and necessity require, may order that any public street, highway or part thereof shall be paved with granite blocks, vitrified brick, asphalt or other suitable solid material, and provided with necessary curbstones for the purpose of such paving; and thereupon the commissioner of public works shall cause such public street, highway or part thereof, to be graded, paved and provided with necessary curbstones, in accordance with the provisions of such order, and shall certify an itemized account of all expenses incurred and paid on account of such order to the assessors of taxes. Such account shall include all damages paid to any owner of real estate for injury sustained in his property by reason of any raising, lowering, or other act done for the purpose of repairing such street or highway, as herein authorized. At any time within two years after such street, highway or part thereof shall be so graded and paved, the assessors of taxes shall assess in — 200 — just proportion upon the real estate abutting on any such street, highway or part thereof, one half the expense of such grading, paving and constructing curbstones, except that every street railway now or hereafter operated in said city shall be assessed by said assessors for and shall pay the whole expense of grading and paving that portion of every street graded and paved which is covered by its rails, and a space eighteen inches outside of and adjoining its tracks on either side. The amount to be paid by any street railway shall in every case be first ascertained and deducted from the total expense of grading and paving and constructing curbstones under this section, before any assessment is made upon abutting real estate, and no assessment shall be made until the work of grading and paving shall be completed.” By other sections, the assessments were made a lien on the real estate; provision was made for reassessment, for apportionment of payments; for revision by jury on petition of a party aggrieved by the doings of the assessors; for costs in such proceedings; for collection by lessors assessed from lessees of-lands leased after the passage of the act; for deduction from assessments if benefit was set off in any proceeding for damages caused by any act done under authority of the statute; for the issue of bonds or notes not to exceed in the aggregate $100,000 “beyond the limit now prescribed by law and in addition to all amounts hitherto authorized” which should be payable in equal annual instalments in not exceeding five years from their date to be designated “Permanent Improvement Loan, Act of 1897,” and, in payment of which the city treasurer was to certify to the assessors each year the amount issued and outstanding, and the assessors in each year were to assess on the real and personal estate subject to taxation and situated in North Adams sums sufficient to discharge all payments for principal and interest falling due, the city to raise such sums by taxation; for power to the city council to authorize the city treasurer to sell such bonds or notes in his discretion for not less than par, the proceeds to be used to pay “for the grading and paving of such streets or part thereof as may be designated by the city council under this act, and providing curbstones for the same,” no — 201 — bonds or notes issued under the act to be included in determining the debt limit of the city. The act by .§ 7 also provided that “Whenever the mayor and city council pass an order to grade and pave a street, highway or part thereof under this act, the mayor shall within thirty days thereafter file a declaration thereof in the registry of deeds for the northern Berkshire district, which shall state in general terms the action of said mayor and council, and shall state the streets, street, highway or part thereof upon which such parcels of real estate subject to assessment under this act are situated. The register of deeds shall cause such declaration to be forthwith entered in book kept for the purpose, and classified according to the names of the streets specified therein.” Such an act was, obviously, special legislation affecting only the city of North Adams. The court is not informed whether any, and if any what, . action was taken by the city under this statute within the quarter of a century which elapsed between its enactment and the beginning of the proceedings challenged in these petitions. In the years 1898,1900,1901 and 1903, this court, in Weed v. Mayor & Aldermen of Boston, 172 Mass. 28; Dexter v. Boston, 176 Mass. 247; Lorden v. Coffee, 178 Mass. 489; and White v. Gove, 183 Mass. 333, in dealing with statutes very similar to St. 1897, c. 75, decided them to be unconstitutional, because they permitted the levy of assessments for public improvements in ways and sewers which were calculated or likely to be in excess of any benefit conferred on the property assessed. See Carson v. Brockton, 175 Mass. 242; Hall v. Street Commissioners, 177 Mass. 434. The reasoning of the opinions in Union Street Railway v. Mayor of New Bedford, 253 Mass. 304, and 253 Mass. 314, shows that the provision made by § 1, for assessment upon any street railway, is also obnoxious to the Constitution for like cause. The returns in the cases before us show an assessment of $1,292.44 on property valued at $1,000; of $13,211.09 upon a street railway company with nothing to indicate that it owns any property abutting on the way benefitted by the improvements. The assessments upon the petitioners of a specified amount per — 202 — front foot of their land are unequal in burden. One estate valued at $7,300 is assessed $208.56, while another valued at $6,450 is assessed $587. It cannot be said that a charge based upon the front foot is always inequitable, see Weed v. Mayor & Aldermen of Boston, supra, at page 32, but, manifestly, the inequality resulting from such a method of assessment in the existing circumstances is too gross to be permissible. See White v. Gove, supra, at page 336. The language of the statute requires an assessment “in just proportion”; but it makes no provision that the half of the total expense which is to be assessed upon the land shall not exceed the benefit conferred. It well may be that the benefit is much less than half the expense. The cases referred to decide that legislation imposing a charge which exceeds the benefit is ud constitutional because it takes property without providing a just compensation. It is to be noted also that any street railway whose tracks lie in the way dealt with is to be assessed for the whole expense of grading and paving the portion of the way occupied by its tracks and a space of eighteen inches on either side of them, and that no consideration is paid to the amounts of benefit conferred. In the Union Street Railway v. Mayor of New Bedford cases, supra, this was held to invalidate a betterment assessment. The assessment here is manifestly not intended to be an excise tax. It is an exaction toward the expense of a public improvement, and must be limited by the benefit conferred upon the property subjected to it. The statute, therefore, is unconstitutional: and for that reason the assessments challenged in the first and second petitions are invalid. It is unnecessary to consider the other objections urged against their validity. The respondents have set up laches on the part of the petitioners. In the first two of the cases the petitioners are threatened with loss of property under an unconstitutional proceeding. It does not appear that the respondents have been harmed by the delay; that they have taken action in reliance upon acquiescence or consent of the petitioners; nor that the latter have in any way acknowledged the validity of the assessments complained of. In such circumstances, we — 203 — find no laches which should defeat the petitions. Harwood v. Donovan, 188 Mass. 487, is not controlling, for there partial payments upon illegal assessments had been made for five years before instituting proceedings. Different considerations apply to the third petition. The proceedings resulting in the assessments for laying sidewalks were taken under G. L. c. 83. The order required the construction of a concrete sidewalk “on the south side of West Main Street, from Brown Street to State Road so called” and provided that one half the cost be assessed upon abutting estates. Work upon so much of the sidewalk as was in front of premises of the petitioners was begun and completed in 1924, but work bn a portion fronting upon premises belonging to the city was not begun until May, 1925, and was completed on October 23, 1925. The order providing for the assessment was made on December 12, 1924. It recited that “such portion of the work on said street for which one-half the cost thereof is assessed has been completed, the total cost of which is $3600.18”; and assessed one half that sum upon the estates of the petitioners. The petitioners contend that the assessments are invalid because § 24 of the city’s charter (St. 1895, c. 148) was not complied with; because no such estimate and record were made as are required by G. L. c. 80, § 2; and because the order was made before the entire work was completed. The order for construction of the sidewalk and the assessment of one half the cost was made under G. L. c. 83, §§ 25-28, inclusive. It was constitutional. Howe v. Cambridge, 114 Mass. 388. The provisions of G. L. c. 80 “relative to the apportionment, division, reassessment, abatement and collection” of betterment assessments, made applicable by G. L. c. 83, § 28, to sidewalk assessments, do not include the requirements of G. L. c. 80, § 2, in regard to estimate and record. The return shows that record to comply with G. L. c. 83, § 27, was made. It is true that the entire work contemplated by the order of April 1, 1924, had not been completed when the order for assessment was made on January 13, 1925. Nevertheless all work for which an assessment could be collected had been — 204 — done. What work remained unfinished was to be done on a portion of the sidewalk adj oining land of the city. The work for which an assessment was contemplated when the order for construction was passed had actually been completed before January 13, 1925. The petitioners were not affected. It is not open to them to complain of conduct which did not injure them. It may be that there was a failure to comply with the provisions of § 24 of the city’s charter (St. 1895, c. 148) in the unanimous adoption by the city council on April 1, 1924, at a single reading and without a yea and nay vote, of the adjudication of public convenience as to the concrete sidewalk and the order for its construction. It would not necessarily follow, however, that the petitioners are entitled to maintain the third petition. Certiorari does not issue as a matter of right. In their return, the respondents set up laches of the petitioners. It appears from the record that the expense of the construction of the concrete sidewalk was less than three per cent of the expense of a work of public improvement on West Main Street which had been under consideration by the public authorities since 1923, and which ultimately cost $125,000. The votes as to the paving (which was the subject matter of the first and second petitions) and as to the sidewalk (which was the subject matter of the third petition) were passed by the city council on the same day, the first on a written recommendation by the mayor. In addition to that paving and the sidewalk, and in connection with them in carrying out the improvements on the street, the city expended a large sum of money for renewing old sidewalks and building steps and concrete retaining walls. The entire work was a unit of which the public and especially the abutting owners had full knowledge. No evidence of any complaint from the petitioners in the third petition is found in the record until May 10,1926, when a committee of three, one of whom afterwards was a petitioner in the third petition, purporting to act for “abutters,” presented a petition to the city council for abatement of both assessments. The expressed ground for abatement of the sidewalk assessment was an improper location of the sidewalk. Nothing was — 205 — said as to the violation of the charter later relied on. Of the forty petitioners in the third petition, all but eight have paid the amount of the assessment to the city. Of these eight, three have received the benefit of the improvements in the nature of retaining walls built by the city without expense to them. It is clear that in the exercise of a sound discretion the writ should not issue in the third case. Byfield v. Newton, 247 Mass. 46, 58, 59. Harwood v. Donovan, 188 Mass. 487. The writ must issue in the first two cases, and is denied in the third case. So ordered.