levy of betterment assessments are irrelevant to such apportioning. The cities and towns affected are not entitled to be heard at any stage of the proceedings upon the share of the burden which they are to bear;" and in apportioning the burden the population of the cities to be assessed, their extent and their ability to bear the burden may be considered, as well as the benefit accruing to each.12 It would only be in a case of a purely arbitrary and unreasonable imposition of a burden upon a particular section of the state that the court would have any occasion to interfere. Even in such a case the city or town would have no standing in court to ask for relief, and the court would act only at the instance of an aggrieved taxpayer, who was being made to bear a disproportionate burden of taxation.13 Apart from the right to be free from arbitrary taxation for the benefit of another portion of the state, the inhabitants of a city or town have some vague and shadowy rights of local self-government of which the legislature cannot constitutionally deprive them 1 and it may be that there are purposes of sufficiently public nature that the legislature may authorize local taxation in their behalf and yet of such distinctly local interest that compulsory expenditure by the very town affected would be beyond the power of the legislature to enforce. It would certainly be an extreme exercise of legislative power to require a municipality against its wishes and without its consent to establish a municipal lighting plant at the expense of its taxpayers to furnish light to its own inhabitants. But improvements which benefit the health, morals or safety of such portion 11 Chelsea v. Treasurer & Receiver General, 237 Mass. 422 (1921). 12 Commonwealth v. Newburyport, 103 Mass. 129, 134 (1864); In re Metropolitan Park Commissioners, 209 Mass. 381 (1911); Boston, Petitioner, 221 Mass. 468 (1915); Opinion of the Justices, 234 Mass. 612, 616 (1920); Boston v. Treasurer & Receiver General, 237 Mass. 403 (1921). 13 Chelsea v. Treasurer & Receiver General, 237 Mass. 422 (1921). 14 Commonwealth v. Plaisted, 148 Mass. 375, 384 (1889); Mount Hope Cemetery v. Boston, 158 Mass. 509 (1893); Higginson v. Boston, 212 Mass. 583 (1912); Woods v. Woburn, 220 Mass. 416, 421 (1915). The distinction between undertakings carried on by a municipal corporation in its private and proprietary capacity and those carried on in its public and governmental capacity has been frequently recognized by the Supreme Court of the United States. Tippecanoe County Commissioners v. Lucas, 93 U. S. 108, 115 (1876); Meriwether v. Garrett, 102 U. S. 472, 518, 530 (1880); Mobile v. Watson, 116 U. S. 289, 305 (1886); Essex Board v. Shinkle, 140 U. S. 334, 342 (1891); New Orleans V. Water Works Co., 142 U. S. 79, 91 (1891); Covington v. Kentucky, 173 U. S. 231, 240 (1899); Worcester v. Worcester St. Ry. Co., 196 U. S. 539, 551 (1905); Monterey v. Jacks, 203 U. S. 360 (1906); Hunter v. Pittsburgh, 207 U. S. 161, 179 (1907). of the public as dwells in a particular municipality may unquestionably be required to be constructed and maintained at the expense of the municipality in which they will be situated.15 SPECIAL ASSESSMENTS 64. The Origin and Development of Special Assessments The system of general taxation which has grown up under our customs, laws and constitutions consists of the assessment at definitely fixed intervals of a sum sufficient to meet the public expenses of each political subdivision upon all the persons or all the property contained therein at a uniform rate, and no attempt to assess each taxpayer for the benefit he receives either from the public expenditures as a whole or from the different items of such expenditures is required. In some instances however an expenditure for a particular public purpose is assessed upon those who occasion the expenditure, as when the expense of supervising public service corporations is assessed upon the corporation supervised,' or the expense of repairing the roads is met in part by the license fees imposed upon motor vehicles.2 So also it frequently happens that a particular public improvement, while enhancing the general public convenience to a certain extent, is so peculiarly advantageous to a definite territory which does not happen to coincide with one of the existing political subdivisions of the state that it is deemed more just to assess the cost of the improvement upon the benefited area than to include it in the general tax levy upon the entire community. For example, the cost of maintaining a bridge is some 15 Higginson v. Boston, 212 Mass. 583 (1912). 1 See for example, G. L. c. 25 § 11. 2 See G. L. c. 90 § 34. The limits of the power of the legislature to levy a tax upon a particular class of persons or property or upon particular acts, occupations or privileges to meet an expenditure for a particular public purpose, at least when there is no direct relation between the subject of the tax and the subject of the expenditure, have never been clearly defined. In Knights v. Treasurer & Receiver General, 237 Mass. 493 (1921), it was held that the statutes questioned in that case did not constitute a tax on particular property for a particular public purpose and it was not decided whether such a tax would be constitutional if no relation between the tax and the expenditure was shown. 3 See Webster v. Fargo, 181 U. S. 395 (1901), in which it is said that it is within the power of the state to create special taxing districts and to charge the cost of a local improvement upon the property within such districts according either to valuation, area or frontage. times imposed upon certain designated counties or towns, and in other cases quasi corporations called districts are created to support the schools, to furnish a water supply or to provide for the extinguishment of fires in the territory embraced in the district. Although the funds in such instances are raised by a tax assessed upon all property within the district at a uniform rate and such a tax constitutes a general tax rather than a special assessment, yet it represents a departure from the fundamental principle of general taxation by imposing the expense of a particular item or branch of public enterprise upon the territory actually benefited by it. One step farther takes us to the true special assessment or betterment in which the cost of a particular improvement is assessed in whole or in part upon the territory benefited by the improvement in proportion to the benefit received by each parcel of land within such territory. "A The special assessment is no modern innovation. As early as 1658 a public way was laid out by the general court of the colony of Massachusetts Bay and power was given to impose the cost on "all such as shall have benefit of the way." A provincial statute enacted in 1692 provided that the damages for land taken for the enlargement and regulation of narrow and crooked lanes and passages in Boston should be paid by the neighborhood or town "in proportion to the benefit or conveniency any shall have thereby." The statute enacted in 1760 providing for rebuilding that part of Boston which had been laid waste by fire required a jury to assess the damages and benefits from new streets laid out therein, the damages to be paid by the persons benefited or by the town of Boston or by both in such proportions as the jury should find reasonable. In 1709 4 Norwich v. Hampshire County Commissioners, 13 Pick. 60 (1832); Hingham & Quincy Bridge & Turnpike Co. v. Norfolk County, 6 Allen, 353 (1863); Salem Turnpike & Chelsea Bridge Co. v. Essex County, 100 Mass. 282 (1868); Dow v. Wakefield, 103 Mass. 267 (1869); Carter v. Cambridge & Brookline Bridge Proprietors, 104 Mass. 236 (1870); Scituate v. Weymouth, 108 Mass. 128 (1871); Northampton Bridge Case, 116 Mass. 442 (1875); Brayton v. Fall River, 124 Mass. 95 (1878); Kingman, Petitioner, 153 Mass. 567 (1891); Williams v. Eggleston, 170 U. S. 310 (1898). 5 See for example G. L. c. 40, § § 41, 44; c. 41, § § 113 to 119 inc.; c. 48, $ 60-80 inc. 6 Williams College v. Williamstown, 219 Mass. 46 (1914). 'Mass. Col. Rec., part 1, 327. 8 St. 1692-3, c. 1. 9 St. 1760-1, c. 3. and again in 1796 it was enacted that persons receiving any benefit from common sewers should pay to the persons who had built the sewers such a proportional part of the cost of making and repairing the same as should be assessed upon them by the selectmen of the town.10 Provision was made in 1727 that damages caused by the laying out of particular and private ways should in some instances be paid by the persons benefited, and these provisions are still in force." In 1799 sidewalks in Boston were authorized to be built at the expense of the abutters.12 The statutes authorizing the compulsory joint drainage of swamps and meadows and providing for the assessment of the cost upon the estates benefited were of early origin and are still upon the statute books.13 Many of these statutes were enacted before the legislative power was restricted by a written constitution and all of them before constitutional law had reached the stage of development in which it had become necessary that each legislative enactment be classified and subjected to certain well defined limitations applicable only to the class into which it had been thrust. Subjected to modern critical analysis not all of these statutes appear to be an exercise of the power of taxation; some of them seem to fall within the police power and others are very close, at least, to the power of eminent domain in imposing the obligation of paying the land damages caused by a particular improvement upon the persons who were responsible for its construction. Nevertheless these statutes, although difficult or impossible to classify, paved the way for the true special assessment in its present form, which unquestionably is imposed under the power of taxation," although pecuniary impositions under the police power have also a recognized place in our jurisprudence. 15 10 St. 1709-10, c. 5, § 3; St. 1796, c. 47, § 2. 11 St. 1727-8, c. 1, § 2; G. L. c. 82, § 24. 14 Dorgan v. Boston, 12 Allen 223 (1866); Harvard College v. Aldermen of Boston, 104 Mass. 470, 482 (1870); Codman v. Johnson, 104 Mass. 491, 492 (1870); Prince v. Boston, 111 Mass. 226, 231 (1872); Boylston Market Association v. Boston, 113 Mass. 528, 530 (1873); Howe v. Cambridge, 114 Mass. 388, 391 (1874); Worcester County v. Worcester, 116 Mass. 193 (1874); Bigelow v. Boston, 123 Mass. 50, 52 (1877); Somerville v. Dickerman, 127 Mass. 272, 275 (1879); Boston v. Boston & Albany R. R. Co., 170 Mass. 95, 98 (1898); White v. Gove, 183 Mass. 333, 335 (1903); Wheatland v. Boston, 202 Mass. 258, 262 (1909). 15 Infra § 71. A special assessment, though justified as an exercise of the taxing power and itself undoubtedly a form of taxation, is not necessarily a "tax" when that word is used without qualification in a statute or contract, and whether the word "tax" so used is intended to include special assessments must be gathered from the surrounding circumstances.16 65. The Constitutionality of Special Assessments In view of the early development of special assessments in this commonwealth and their long and unquestioned usage, it it not surprising that when objection to the constitutionality of this form of taxation was finally made it was not sustained by the courts. The supreme court of Massachusetts held that none of the requirements of the constitution were violated by a tax levied for public purposes of a local character although imposed only on a certain town or district or on persons residing or owning property in a particular locality, and that an assessment made on persons in respect of their ownership of certain property which receives a peculiar benefit from the expenditure of the money raised by the tax, or by reason of their residence in the vicinity of a proposed public improvement and the special advantage or convenience which will accrue to them and their property therefrom, will not be held invalid, although it does not operate on all persons and property in the community in the same manner as taxes levied for general purposes.1 16 A special assessment is a tax within the meaning of the statute regulating actions at law to recover back taxes (G. L. c. 60 § 98), Barrett v. Cambridge, 10 Allen 48 (1865); Knowles v. Boston, 129 Mass. 551 (1880); Wheatland v. Boston, 202 Mass. 258 (1909); or of the statute restricting the effect of partial invalidity (G. L. c. 59 § 82); Lynde v. Malden, 166 Mass. 244 (1896). It is not however a tax within the meaning of statutes giving exemption from taxation, whether general laws, Boston Seamen's Friend Society v. Boston, 116 Mass. 181 (1874); Worcester Agricultural Society v. Worcester, 116 Mass. 189 (1874); Phillips Academy v. Andover, 175 Mass. 118 (1900); or particular charters, Boston Asylum and Farm School v. Street Commissioners of Boston, 180 Mass. 485 (1902). A special assessment is however included within an exemption from "all civil impositions, taxes and rates." Harvard College v. Aldermen of Boston, 104 Mass. 470 (1870). A special assessment is included in a covenant to pay "all taxes and assesments," Codman v. Johnson, 104 Mass. 491 (1870); "all taxes and duties," Blake v. Baker, 115 Mass. 188 (1874); Simonds v. Turner, 120 Mass. 328 (1876); "all taxes, rates, charges and assessments," Walker v. Whittemore, 112 Mass. 187 (1873); "the rates, taxes and duties of every kind," Curtis v. Pierce, 115 Mass. 186 (1874); or in a covenant to convey "a good title, free from all mortgage encumbrances, taxes and mechanics' liens," Williams v. Monk, 179 Mass. 22 (1901). See however Smith v. Abington Savings Bank, 165 Mass. 285 (1896). 1 1 Dorgan v. Boston, 12 Allen 223 (1866). |