Howe v. City of Cambridge , 114 Mass. 388 ( 1874 )

Colt, J.

The St. of 1863, c. 191, authorizes the mayor and aldermen of the city of Cambridge to assess upon the abutters in just proportions the expense of the edge-stones and covering materials for sidewalks constructed under their order. Assessments have been made under this act, and the plaintiffs, in a petition for a writ of certiorari, object to their validity, and ask that the city may be prevented from collecting them.

It is alleged that the act is unconstitutional. 1. Because no right of appeal to a jury is given to a party aggrieved by the doings of the mayor and aldermen. But in cases like this, there is no right of appeal secured by the Constitution. The purpose of the act is to provide for certain local improvements in public streets, the expense of which shall be partly borne by those immediately interested and whose estates are benefited thereby. It has been repeatedly held by this court that this is a mode of taxar fcion which the Legislature may well adopt. It is clearly distinguishable from the exercise of the right of eminent domain, and does not, like that, require that a right of appeal to a jury should be secured. Jones v. Aldermen of Boston, 104 Mass. 461, 467. Salem Turnpike v. Essex, 100 Mass. 282, 287. Goddard, petitioner, 16 Pick. 504.

2. As an exercise of the power of taxation, the act is objected to as unconstitutional, because the rule of proportion to be followed in making assessments has not been fixed by the Legislature. The act provides that a definite portion of the expense of the improvement, namely, the cost of the edge-stones and covering materials, “ shall be assessed upon the abutters in just proportions,” deducting from the assessment all sums which may have been previously paid to the city by the tax-payer for previous improvements. This plainly requires that the assessment be laid equally upon the abutting estates, which, from the nature of the work, must be immediately benefited. The limits of the locality subject to the burden are fixed by the act with sole reference to these special benefits, and a rule is given by which the entire expense is divided between the abutters and the city. The rule of apportionment is uniform throughout the taxing district, and sufficiently approaches equality. The principle of taxation here adopted has been repeatedly applied by the Legislature with reference to sidewalks and other local improvements, and under the decisions of this court the power is not open to constitutional objection. Lowell v. Hadley, 8 Met. 180. Springfield v. Gay, 12 Allen, 612. Goddard, petitioner, supra. Salem Turnpike v. Essex, supra. Haverhill Bridge v. County Commissioners, 103 Mass. 120. Dow v. Wakefield, 103 Mass. 267. Carter v. Cambridge Bridge, 104 Mass. 236. Dorgan v. Boston, 12 Allen, 223, 235, 240. Jones v. Boston, 104 Mass. 461, 467.

3. It is finally objected that the mayor and aldermen, under the power given them, did not in fact assess the abutters in just proportions. The case is reserved upon petition and answer and upon the facts disclosed. We cannot say, as matter of law, that the principle adopted by the board was not in compliance with the requirements of the act, or that under it the assessment was node in unjust proportion.

Petition dismissed.