Although special assessments are not in themselves unconstitutional, the opportunity for unfairness and oppression offered by their use is so much greater than is offered by general taxation that the constitutional provisions applicable to the power of taxation have been more liberally construed in favor of the individual in passing upon taxation of the former class, and safeguards have been thrown about the owners of land subjected to special assessment which cannot be invoked against general taxation. The principal requirements of a valid special assessment are as follows:

(1) The use for which the money is raised must be public. (2) The improvement for which the assessment is levied must beneficially affect a well defined and limited area.

(3) The assessment must not exceed the actual benefit to each parcel assessed.

(4) The owner of the land assessed must be given an opportunity for a hearing on the extent of the benefit.

(5) The total assessment must not exceed the cost of the improvement.

66. The Use must be Public

1

The well established principle that public funds raised by taxation cannot be devoted to any use not public 1 is not limited in its application to funds raised by general taxation, but applies to special assessments as well. Public highways, sewers and parks are unquestionably for the public use, and it has been held that the benefit from the location of a railroad station may be the basis of a special assessment. A private street in which the public has no right of passage cannot be paid for by assessments upon the abutters.*

3

There is one species of pecuniary imposition which resembles in form a special assessment but which does not require the public use for its justification. Under a branch of the police power of the state, when property in which several persons have a common interest cannot be fully and beneficially enjoyed in

1 See supra § 58.

2 Morse v. Stocker, 1 Allen 150 (1861); Lowell v. Boston, 111 Mass. 451 (1873); Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902).

3 Sears v. Street Commissioners of Boston, 180 Mass. 274, 279 (1902). 4 Morse v. Stocker, 1 Allen 150 (1861).

its existing condition and the parties interested therein cannot agree upon a scheme for the more advantageous use of the property, the law often provides a way in which they may compel one another to submit to measures necessary to secure its beneficial enjoyment, making just compensation to any of the proprietors whose control of the property or interest therein has been modified by the new arrangement, which compensation those of the proprietors who are benefited are obliged to pay. The exercise of this power in most instances is upon property held in common, but the principle is the same if applied to a tract of land affected by common necessities and interests although divided into parcels held by individual owners in severalty. A familiar instance is the draining of swamps and meadows, the condition of which is not such as to menace the public health, but merely renders them incapable of beneficial use. When a tract of low, marshy land is divided into several parcels held by different owners and a general improvement of the whole cannot be effected without the harmonious co-operation of all the owners, the common necessity is met and the common interest secured by the intervention of the state, and the individual rights of each owner are subjected to such modifications as seem most adapted to secure the best advantage of all. Those who are damaged are compensated by those who are benefited. Land is actually taken and pecuniary impositions are levied although the use is not public; but neither the power of eminent domain nor the power of taxation is exercised. No land outside the tract affected by the common interest is taken or assessed and it is settled that the compulsory improvement of the tract in the manner described is a valid exercise of the police power."

67. The Improvement must be Local

A public improvement to be the basis of a special assessment must have an actual and beneficial effect upon a well defined and limited area. The only departure permissible from the system of general taxation by which all the property in a given territorial unit is assessed at a uniform rate is the local special assessment justified by the local character of the improvement.

5 Lowell v. Boston, 111 Mass. 454 (1873); Wurts v. Hoagland, 114 U. S. 606 (1885).

2

The general benefit to all the property in a city or town arising from a particular public improvement must be met by general taxation,1 and a system by which for example all the real estate within a city or town was assessed for the maintenance of the sewers or all the personal property for the expenses of the police department would conflict with the provisions of the constitution requiring reasonable and proportional taxation. Not all classes of public improvements and undertakings are proper objects of special assessments; but it has been held constitutional to levy a special assessment to cover the whole or part of the cost of the construction and alteration of public streets, the construction of sewers for house sewage and drains for surface water; the construction of sidewalks," of parks' and even of railroad stations. Ordinarily local benefit is not derived from a public improvement unless it is constructed, but there may be improvements of such a nature that the mere formal laying out confers a benefit, and the construction may confer another benefit. Local benefit to be the basis of an assessment need not be of a permanent character and assessments have been sustained for watering a street 10 or for maintaining a sewer.11 It is no objection to the validity of an assessment that the owner of the land assessed has no legal right to have the improvement for which he is assessed main

3

4

1 Upham v. Worcester, 113 Mass. 97 (1873); Baker v. Boston Elevated Railway Co., 183 Mass. 178, 182 (1903).

2 Sears v. Street Commissioners of Boston, 173 Mass. 350 (1899).

3 Dorgan v. Boston, 12 Allen 223 (1866); Jones v. Aldermen of Boston, 104 Mass. 461 (1870).

4 Downer v. Boston, 7 Cush. 277 (1851); Butler v. Worcester, 112 Mass. 541 (1873).

5 Beals v. James, 173 Mass. 591 (1899).

6 Lowell v. Hadley, 8 Met. 180 (1844); Howe v. Cambridge, 114 Mass. 388 (1874).

7 Holt v. Somerville, 127 Mass. 408 (1879); Foster v. Park Commissioners, 133 Mass. 321 (1882).

8 Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902).

9 Foster v. Park Commissioners of Boston, 133 Mass. 321 (1882); New England Hospital v. Street Commissioners of Boston, 188 Mass. 88 (1905).

10 Sears v. Aldermen of Boston, 173 Mass. 71 (1899); Phillips Academy v. Andover, 175 Mass. 118 (1900); Stark v. Boston, 180 Mass. 293 (1902); Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908); Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914).

11 Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242 (1900); sustained 182 U. S. 398 (1901). See also Swigart v. Baker, 229 U. S. 187 (1913) holding that the cost of maintenance of irrigation works may be specially assessed.

tained forever.12 A landowner may be assessed for the reconstruction of a public improvement which had been worn out by use although he had been assessed for the original construction.13

In many instances in which an assessment is levied for the construction of a street or a sewer, the principal object of the` public authorities in laying out the street or the sewer is to benefit the territory assessed, but it is no reason for invalidating an assessment, that the general public benefit was the main object of the improvement and the local benefits were only incidental. There is no requirement that either the whole cost of a public improvement or none at all must be borne by those benefited, or that the entire benefit must be assessed.1 It is only when the general public benefit is the sole result of the improvement that a special assessment cannot constitutionally be levied.15 When an improvement confers both a general and a local benefit, it is of course only the local benefit that can be specially assessed; the general benefits are not subjects of compensation from the landowner to the public in any form of proceeding.10

16

68. The Assessment is Limited by the Cost of the

Improvement

A special assessment is a tax and the benefit is estimated only as a means of apportioning the tax and providing a fixed limit of the amount to be assessed upon each estate. The fact of such benefit from the improvement furnishes a justification for the imposition of a tax upon a particular class of estates instead of a levy in the general way of ordinary taxation, but such benefit would not of itself warrant the exaction of money by way of compensation therefor. The estates are assessed not for the benefit conferred but for the cost of the public improvement. The essential point in the proceeding is the ex12 Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902). See infra, § 72.

13 Sayles v. Pittsfield Board of Public Works, 222 Mass. 93 (1915).

14 Opinion of the Justices, 231 Mass. 603, 612 (1919).

15 Briggs v. Whitney, 159 Mass. 97 (1893); Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902).

16 Upham v. Worcester, 113 Mass. 97 (1873); Baker v. Boston Elevated Railway Co., 183 Mass. 178, 182 (1903). As to the distinction between general and local benefits, see further infra, page 672.

penditure for a public service for which taxation in some form is required.1

In ascertaining the cost which is to be the basis of an assessment and the benefit in accordance with which the whole or part of the cost is to be assessed there is no objection to joining different features of what are really part of the same public improvement. While it is not unconstitutional to assess a betterment before the work is completed, based on the estimated cost of the work, there is no impropriety in waiting until after the completion of the work,3 and an assessment is valid in the absence of statutory prohibition, although made several years after such completion. There is no constitutional objection to the enactment of a statute authorizing the levying of an assessment for a public improvement completed before the enactment of the statute, even if changes of ownership in the lands assessed have intervened," and the reassessment of an assessment held void for irregularity or error is equally unobjectionable.

5

7

If after a public improvement has been constructed under an act authorizing the assessment of betterments the statute is repealed before the betterments are collected, the repeal of the statute does not violate any constitutional rights of the city or town.8

69. The Assessment must not Exceed the Benefit

It has long been a mooted point among constitutional lawyers in the country at large whether a special assessment can be constitutionally imposed upon a parcel of land in accordance with a rule which excludes all inquiry upon the question of actual

1 Chase v. Aldermen of Springfield, 119 Mass. 556 (1876).

2 Lincoln v. Street Commissioners of Boston, 176 Mass. 210 (1900); Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902). See also Arnold v. Cambridge, 106 Mass. 352 (1871); American Unitarian Association v. Commonwealth, 193 Mass. 470 (1907).

3 Prince v. Boston, 111 Mass. 226 (1872).

4 Fairbanks v. Mayor & Aldermen of Fitchburg, 132 Mass. 42 (1882); Hester v. Collector of Brockton, 217 Mass. 422 (1914).

5 Hall v. Street Commissioners of Boston, 177 Mass. 434 (1901). See also Seattle v. Kelleher, 195 U. S. 356 (1904).

6 Morse v. Street Commissioners of Boston, 197 Mass. 292 (1908).

7 Warren v. Street Commissioners of Boston, 187 Mass. 290 (1905). See also Lombard v. West Chicago Park Commissioners, 181 U. S. 42 (1901). 8 Stone v. Street Commissioners of Boston, 192 Mass. 297 (1906).