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Attorney(S)

W. Bolster, for the petitioner. S.M. Child, for the respondent.

Judges

BARKER, J.

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Case Summary: Herbert J. Harwood v. James Donovan

Supreme Judicial Court of Massachusetts, Suffolk. Heard April 4, 1905. Decided June 22, 1905. Panel: Knowlton, C.J., Morton, Lathrop, Barker, Braley, JJ. Reported opinion by Barker, J.

Factual and Procedural Background

The petitioner filed a petition for a writ of certiorari on July 15, 1904, seeking to quash a sewer betterment assessment levied on August 18, 1898. The assessment was made by the respondent's predecessor in office against land on Blue Hill Avenue in Boston that had been owned at the time by Joseph A. Harwood (the petitioner's father and predecessor in title). Under orders adopted by the Boston board of street commissioners (relying on statutes beginning with St. 1891, c. 323, and later amendments), Blue Hill Avenue was laid out, relocated and constructed in a manner requiring a sewer. The superintendent of streets completed the work and levied the sewer assessment on August 18, 1898, assessed by front foot; it is not alleged that the total levied exceeded the cost of the sewer.

The levy included specific assessments against Joseph A. Harwood of $2,090.89 for 983.61 front feet on the northeast corner of Lauriat Avenue and $952.36 for 448.01 front feet on the southeast corner. The petition does not state when the petitioner acquired title. The return to the petition (facts in it agreed to be taken as true) asserted that the sewer construction conferred special benefits in excess of the assessments and that the petitioner had acquiesced by using the sewer and by paying, without protest, five of the ten annual apportionments.

The case was heard in the trial court by Hammond, J., who dismissed the petition. At the petitioner's request the case was reported to the full court "for determination by the full court, such entry to be made therein as upon the facts law and justice might require."

Legal Issues Presented

Whether the assessment levied August 18, 1898, could be quashed by certiorari on the ground that it was levied under statutes later judicially declared unconstitutional (including St. 1891, c. 323, and later statutes cited in the opinion).
Whether a writ of certiorari should issue in favor of the petitioner given (a) the petitioner’s delay in seeking relief (nearly six years after the assessment), (b) acquiescence by the predecessor in title (as suggested by a deed of May 24, 1893), and (c) the petitioner’s payments and use of the sewer.
Whether any asserted defenses raised by the petitioner (that the city was estopped by a deed of May 24, 1893, or that the method of constructing the work was not according to law) are preserved and available for relief.

Arguments of the Parties

Petitioner's Arguments

The assessment is wholly void for want of legislative authority because statutory provisions claimed to authorize the assessments (cited as St. 1891, c. 323; St. 1892, c. 402; and St. 1897, c. 426) had been declared unconstitutional by prior cases.
The petitioner also alleged (but did not pursue on brief and thus waived) that the city was estopped from making the assessment by a deed of May 24, 1893, from Joseph A. Harwood to the city, and that the method of doing the construction work was not according to law.

Respondent's Arguments (as reflected in the return and the opinion)

The return stated that the sewer construction was of great and special benefit to the estates assessed, including the petitioner's estate, in an amount in excess of the assessments levied.
The return and facts showed that the petitioner (or his predecessor in title) had acquiesced in the assessment by using the sewer and by paying five of the ten apportioned annual payments without protest.
Implicitly, the respondent relied on equitable and practical considerations (acquiescence, payment, use, and delay) to resist quashing the assessment even if the enabling statute was later held invalid.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Weed v. Mayor Aldermen of Boston, 172 Mass. 28	Holds that where a sewer is laid not in a street but in a strip of private land taken for the purpose, the method of laying assessments prescribed by the statute is unreasonable and disproportionate (thus unconstitutional in that respect).	The court cites Weed to show that earlier decisions had identified constitutional defects in the statutory scheme relied upon for sewer assessments, but notes Weed's holding was limited to assessments for sewers laid on private strips rather than in a street.
Sears v. Street Commissioners, 173 Mass. 350	Adjudged St. 1897, c. 426, to be unconstitutional.	Used as authority showing that statutes relied upon for assessments (including later statutes) were judicially invalidated.
Lorden v. Coffey, 178 Mass. 489	Declared unconstitutional the amended provision because under it the whole assessment might be greater than the whole benefit to the property assessed.	Shows that amendments to St. 1891 produced provisions vulnerable to constitutional attack because they could permit assessments exceeding benefits.
White v. Gove, 183 Mass. 333	Held that St. 1892, c. 402, providing for sewer assessments in Boston, was void for unconstitutionality irrespective of its application to particular cases.	Supports the proposition that the statutory authority invoked (or related statutes) had been invalidated in prior decisions.

Court's Reasoning and Analysis

The court proceeded in steps:

It described the operative facts: the project was undertaken under orders of the board of street commissioners (purporting to rely on St. 1891, c. 323 and amendments), the work (including the sewer) was completed August 18, 1898, and the superintendent levied a front-foot betterment assessment that same day. The return agreed the sewer conferred special benefits in excess of the assessments.
The court acknowledged that several statutes relied upon for sewer assessments had subsequently been declared unconstitutional by prior decisions (citing Weed, Lorden, White, and Sears). The court accepted, for purposes of the petitioner's argument, that the legislative authority the superintendent thought he had might now be shown not to have existed.
Despite recognizing the statutory invalidity identified in prior cases, the court examined whether the extraordinary equitable remedy of certiorari should issue. The court emphasized that certiorari is not a writ of right but is discretionary and issued only when "substantial justice requires it."
The court weighed equitable and practical considerations: (a) the existence of a stipulation in the deed of May 24, 1893, and the fact that the city assessed only the cost of the sewer suggested a probable special agreement between the city and the predecessor in title under which the owner was content with the assessment and did not challenge it; (b) the petitioner had paid, without protest, five of ten installments and had made use of the sewer—conduct the court treated as acquiescence and an assertion of a right to use the sewer because of the assessment; and (c) the petitioner waited almost six years to seek relief, so that quashing now might create legal complications.
On balance, the court concluded that, although there was a statutory invalidity in principle, the equitable circumstances (delay, payments, use, and probable prior agreement) did not justify issuing certiorari to quash the assessment. The absence of any other direct legal objection to the tax (the levy did not exceed cost and was proportionate by front foot in a street) further weighed against granting relief.

Holding and Implications

Holding: The court affirmed the trial judge's dismissal of the petition; the petition to quash the sewer assessment was dismissed and the order dismissing the petition was ordered to stand.

Implications:

The direct effect is that the petitioner's request for certiorari to quash the August 18, 1898 sewer assessment was denied and the assessment stands subject to its apportionment and prior payments.
The court declined to grant the discretionary writ despite prior judicial invalidation of the statutory authority claimed to support such assessments, resting its decision on equitable grounds (delay, acquiescence, payment, and use) and the likelihood of a prior special agreement with the predecessor in title.
The opinion does not announce a new rule of law invalidating prior precedents; rather it applies the established principle that certiorari is discretionary and will not be issued when substantial justice does not require it in light of equitable circumstances.

Disposition: Order dismissing the petition to stand.

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HERBERT J. HARWOOD vs. JAMES DONOVAN.

Certiorari. Tax, Assessments for benefits. The writ of certiorari is not one of right, and will not be issued to quash a sewer assessment made under a statute afterwards held to be unconstitutional, where the petition for the writ is filed nearly six years after the assessment and it seems probable that there was some special agreement between the city and the petitioner's predecessor in title under which he was content with the assessment and did not wish to contest its validity, and where the petitioner himself has made without protest five of the ten payments into which the assessment has been apportioned and has made use of the sewer.

BARKER, J.

Under orders adopted by the board of street commissioners of Boston, relying on the authority of St. 1891, c. 323, and acts in amendment thereto, which orders were passed in the year 1895, and adjudicated that the public convenience and necessity required it, Blue Hill Avenue was laid out, relocated and ordered to be constructed in a certain manner which involved the building of a sewer within its limits. Under these orders the superintendent of streets constructed the avenue with the sewer, completing the work on August 18, 1898, and on that day he levied a betterment assessment on account of the construction of the sewer. It is not alleged that the total amount levied exceeded the cost of the sewer. The rate of assessment was per front foot. The petitioner's predecessor in title, Joseph A. Harwood, was the owner when the orders cited were passed and when the assessment was levied of a long strip of vacant land, chiefly adapted for residential purposes. Its frontage on the avenue was fourteen hundred and thirty-one and sixty-one one-hundredths feet and this was its main frontage. The levy included an assessment upon Joseph A. Harwood in respect of this land of $2,090.89 on the nine hundred and eighty-three and sixty one-hundredths feet on the northeast corner of Lauriat Avenue and of $952.36 on the four hundred and forty-eight and one one-hundredths feet on the southeast corner of Lauriat Avenue. When the petitioner acquired his title to the land does not appear. The petition was filed on July 15, 1904. The return, the allegations of fact in which it is agreed are to be taken as true, states that the construction of the sewer was of great and special benefit and advantage to the respective estates assessed, including the estate of the petitioner, and in excess of the amount of the assessments and that the petitioner has aquiesced in the assessments by using the sewer, and by making payment without protest of the annual apportionment of the assessments for five years.

1. The petitioner alleged some grounds for asking that the assessment be quashed which are not argued upon his brief, and which we treat as waived. These were that the city was estopped from making such an assessment by the provisions of a deed given to the city by Joseph A. Harwood on May 24, 1893, of so much of the land then owned by him as lay within the lines of the avenue, and that the method of doing the work of construction was not according to law.

2. The petitioner now contends that the assessment was wholly void for want of legislative authority, St. 1891, c. 323, St. 1892, c. 402, and St. 1897, c. 426, having been declared unconstitutional, citing Weed v. Mayor Aldermen of Boston, 172 Mass. 28; Sears v. Street Commissioners, 173 Mass. 350, and Lorden v. Coffey, 178 Mass. 489.

In the first place it is to be noted that there is no ground for contending that the assessments upon Joseph A. Harwood in the present instance offended against any constitutional provision whatever. The assessment was for not more than the cost of the public work. It was only in respect of the special benefit and advantage caused to the respective estates assessed, by the construction of the public work. It was in every instance for an amount less than the special benefit so caused. As the sewer was in a street, the assessment by the front foot was a proportionate assessment.

The constitutionality of St. 1891, c. 323, was considered in Weed v. Mayor Aldermen of Boston, 172 Mass. 28, but all that there was decided was that where a sewer had been laid not in a street but in a strip of private land taken for the purpose the method of laying the assessments prescribed by the statute is unreasonable and disproportionate and that the statute in this respect is unconstitutional. But St. 1891, c. 323, § 15, was amended by St. 1892, c. 418, § 8, and in Lorden v. Coffey, 178 Mass. 489, was declared unconstitutional because under it the whole assessment might be greater than the whole benefit to the property assessed. It was also held in White v. Gove, 183 Mass. 333, that St. 1892, c. 402, providing for sewer assessments in Boston was void for unconstitutionality irrespective of its application to particular cases. St. 1897, c. 426, was so held in Sears v. Street Commissioners, 173 Mass. 350.

It is hard to be certain under what statute the superintendent of streets deemed he was acting in levying the assessment of August 18, 1898. But as the work was done under an order of the commissioners which purported to rest upon the provisions of St. 1891, c. 323, and its amendments, we infer that the tax was supposed to be laid under St. 1891, c. 323, § 15, as amended by St. 1892, c. 418, § 8, and that the reason why the assessment was for the cost of the sewer only, and not for the whole cost of constructing the street, was that all the abutters had made a similar arrangement with that indicated by Joseph A. Harwood's deed of May 24, 1893, and that the city authorities construed that arrangement to leave the city at liberty to assess a betterment tax for the cost of the sewer but not for the cost of relocating, establishing the grade of and constructing the street. However this may be we assume in favor of the petitioner that the legislative authority, which when the assessment was made was supposed to sustain it, is now shown by the decisions cited not to have existed.

The writ for which the petitioner asks is not a writ of right and is issued only when it is shown that substantial justice requires it.

From the stipulation in the deed of May 24, 1893, and the fact that the city authorities saw fit to assess only the cost of construction of the sewer it seems probable that there was some special agreement between the petitioner's predecessor in title and the city, under which the then owner of the land was content with the assessment and did not wish to contest its validity. At any rate the petitioner himself has paid without protest five of the ten payments into which the tax has been apportioned, and has made use of the sewer. This use was in effect an assertion on his part that he had a right to use it because of the existence of the assessment. Just what practical advantage is to be gained by quashing the assessment it is difficult to see. Although he did not wait quite six years he did wait so long that it is probable that the quashing of the assessment at the present time might occasion legal complications. As there was no legal objection to the tax on general principles except that the statute under which it was laid was void because unfair and illegal assessments might be laid under it, there is no reason of substantial justice for us to quash the assessment. We think therefore that the decision of the justice who heard the case should stand.

Order dismissing the petition to stand.

HARWOOD v. DONOVAN