benefits and which may result in the assessment of an amount in substantial excess of such benefits. Many eminent authorities, among them the supreme court of the United States, hold that it is no violation of the general prohibitions of the Fourteenth Amendment to the United States constitution or of similar provisions of the constitutions of the states if the legislature designates a certain area as benefited by a public improvement and directs that the whole or a part of the cost of the improvement be assessed upon the various parcels of land situated within the designated area in proportion to the size, frontage or value of the respective parcels,' unless it plainly appears that the so-called assessment is an abuse and not an exercise of the taxing power and a mere act of confiscation under the guise of law."

3

It cannot be denied that the earlier decisions of the supreme judicial court of Massachusetts, perhaps without treating the question as one requiring especial consideration, sustained assessments levied in proportion to frontage, or area or value and which were not limited to the benefits actually received by each parcel of land assessed. In the last twenty-five years however it has become definitely settled that the requirement of reasonable and proportional taxation in the constitution of the commonwealth protects an owner of land from being obliged to pay a special assessment in excess of the benefit actually received by his land. Even an assessment of the whole or a

1 French v. Barber Asphalt Paving Co., 181 U. S. 324 (1901).

2 Norwood v. Baker, 172 U. S. 269 (1898). The Supreme Court of the United States will interfere with special assessments on the ground of violation of constitutional rights secured by the Fourteenth Amendment only when the action of the state authorities is found to be arbitrary, or wholly unequal in operation and effect. Embree v. Kansas City Road District, 240 U. S. 242 (1916); Witherell v. Ruecking Construction Co., 249 U. S. 63 (1919); Hancock v. Muskogee, 250 U. S. 454 (1919); Branson v. Bush. 251 U. S. 182 (1919); Goldsmith v. Prendergast Construction Co., 252 U. S. 12 (1920); Kansas City Southern Ry. Co. v. Road Improvement District, U. S. (1921).

3 Lowell v. Hadley, 8 Met. 180 (1844); Downer v. Boston, 7 Cush. 277 (1851); Springfield v. Gay, 12 Allen 612 (1866); Workman v. Worcester, 118 Mass. 168 (1875); Keith v. Boston, 120 Mass. 108 (1876); Dickinson v. Worcester, 138 Mass. 555 (1885).

4 Boston v. Boston & Albany R. R. Co., 170 Mass. 95 (1898); Weed v. Boston, 172 Mass. 28 (1898); Sears v. Aldermen of Boston. 173 Mass. 71 (1899); Sears v Street Commissioners of Boston, 173 Mass. 350 (1899); Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242 (1900); Dexter v. Boston, 176 Mass. 247 (1900); Lorden v. Coffey, 178 Mass. 489 (1901); Sears v. Street Commissioners of Boston, 180 Mass. 274 (1902); Stark v. Boston, 180 Mass. 293 (1902); Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232 (1902);

specified portion of the cost of a public improvement upon the parcels benefited in proportion to the benefits actually received cannot be sustained unless it can be inferred from the statute authorizing such assessment that the actual benefit to each parcel assessed is not to be exceeded.5

While some statutes have required the assessing board to determine the actual benefit to each parcel assessed, the courts have recognized that the accurate ascertainment of the exact amount of benefit may be no easy matter and have sanctioned the adoption of rules-of-thumb which reach reasonably correct results, especially when such rules are authorized by the legislature itself and have been employed for many years without objection. Assessments proportioned to the area, the valuation or the frontage of the parcels of land affected by a public improvement were all sustained as valid before the broader construction of the constitutional provisions bearing upon the question was adopted," and it is still held that in thickly settled localities where the different parcels of land are of the same general character such methods of assessment may be treated as reasonably accurate schemes of ascertaining the actual benefit." In the absence of evidence that assessments by such methods work actual injustice the court will not assume that they are invalid or set them aside at the complaint of an owner who is not himself aggrieved; but such an assessment cannot

White v. Gove, 183 Mass. 333 (1903); Harwood v. Street Commissioners of Boston, 183 Mass. 348 (1903); Cheney v. Beverly, 188 Mass. 81 (1905); Hodgdon v. Haverhill, 193 Mass. 327 (1907); Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908); O'Connell v. First Parish in Malden, 204 Mass. 118 (1910).

5 Lorden v. Coffey, 178 Mass. 489 (1901). The court will be loth to infer that it was not intended to limit the assessment to the actual benefit in a statute requiring proportionate assessment and will sustain the assessment if possible. Hall v. Street Commissioners of Boston, 177 Mass. 434 (1901); Cheney v. Beverly, 188 Mass. 81 (1905).

6 In addition to the cases cited supra, note 3, see Boston v. Shaw, 1 Met. 130 (1840); Wright v. Boston. 9 Cush. 223 (1852); Butler v. Worcester, 112 Mass. 541 (1873); Howe v. Cambridge, 114 Mass. 388 (1874); Snow v. Fitchburg. 136 Mass. 183 (1883).

7 Sears v. Aldermen of Boston. 173 Mass. 71 (1899); Smith v. Mayor & Aldermen of Worcester, 182 Mass. 232 (1902); White v. Gove, 183 Mass. 333 (1903); Cheney v. Beverly, 188 Mass. 81 (1905); Hodgdon v. Haverhill, 193 Mass. 327 (1907); Sayles v. Pittsfield Board of Public Works, 222 Mass. 93 (1915). For a method of fixing the rate of assessment for the maintenance of a sewer that was held valid, see Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242 (1900).

8 Corcoran v. Aldermen of Cambridge. 199 Mass. 5 (1908); O'Connell v. First Parish in Malden, 204 Mass. 118 (1910).

be constitutionally enforced upon an estate which is assessed more than it is in fact benefited. An assessment made in accordance with a method which is plainly likely to result in disproportionate taxation may be treated as invalid in any proceeding in which it comes before the court, and the application of one of the customary methods to a whole municipality which contains districts of divergent characteristics falls within the scope of this principle.9

When an assessment is authorized to be laid in accordance with one of the customary methods and under such circumstances that in ordinary cases it will be just and equitable, and provision is made for appeal, and for abatement to constitutional proportions if in any case injustice is wrought by the original assessment, the statute authorizing such assessment is constitutional and a person who is assessed in excess of the benefit cannot treat the assessment upon him as invalid but is confined to the statutory remedy of application for abatement."" If however the assessment itself is laid in such a way as to inevitably result in disproportionate taxation in cases that may be so frequently expected to arise that it can fairly be said that the assessment was imposed without regard to the limitations of the constitution, there is considerable doubt whether a provision for appeal and abatement will save the whole assessment from being treated as unconstitutional and void.11

When the legislature itself designates a district as benefited by a certain public improvement and authorizes the assessment of the cost upon the land within the district according to value, area or frontage, the statute is constitutional unless it actually works injustice. The determination of the district to be assessed may however be left by the legislature to the decision of a local board of commissioners, and may be made to consist of such lands, and such only, as the commissioners may decide to have been benefited.12 When however the legislature passes a law of general future application allowing an assessment to be made upon a district determined by a local board in propor

9 Dexter v. Boston, 176 Mass. 247 (1900); White v. Gove, 183 Mass. 333 (1903); Smith v. Boston, 194 Mass. 31 (1907).

10 Stark v. Boston, 180 Mass. 293 (1902).

11 White v. Gove, 183 Mass. 333 (1903); Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908).

12 Bauman v. Ross, 167 U. S. 548, 590 (1897).

tion to value, area or frontage, the law itself is unconstitutional unless it can be inferred from something contained therein that the assessment authorized is limited to what can constitutionally be imposed. There is however no objection to a statute which authorizes a local board to impose "just," "reasonable" or "equitable" assessments, and if the board makes the assessment according to value, area or frontage in a district in which such a method is suitable, the assessment itself, in the absence of evidence of actual injustice, is valid.13

70. The Owner is Entitled to a Hearing

It is now well settled that no statute is constitutional which authorizes the final and conclusive determination of the amount of the assessment upon each parcel of land without giving the owner of such land an opportunity for a hearing.1 The right to a hearing is not satisfied by granting the taxpayer an opportunity to file written objections, and he must be allowed to appear in person and support his contentions by argument and proof. It is not however necessary that the owner be heard when the assessment is made in the first instance if he is given an opportunity for application for abatement or for appeal.3

It is sometimes provided that the application for abatement may be heard by a jury, but it is well settled that there is no constitutional right to a jury trial in such cases, or even to a hearing before a judicial tribunal. The hearing may be before the board which made the original assessment," or before another board which while acting judicially in this instance is not a court and is composed of executive officers." The findings of fact of such boards are conclusive and cannot be contested in courts 13 Howe v. Cambridge, 114 Mass. 388 (1874); Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242 (1900).

1 Sears v. Street Commissioners of Boston, 173 Mass. 350 (1899); Oklahoma Ry. Co. v. Severus Paving Co., 251 U. S. 104 (1919).

2 Londoner v. Denver, 210 U. S. 373 (1903).

3 Butler v. Worcester, 112 Mass. 541 (1873); Weed v. Boston, 172 Mass. 28 (1898); Sears v. Street Commissioners of Boston, 173 Mass. 350 (1899); Hodge v. Muscatine County, 196 U. S. 281 (1905).

4 Palmer v. McMahon, 133 U. S. 660 (1890); Bauman v. Ross. 167 U. S. 548, 593 (1897); Howe v. Cambridge, 114 Mass. 388 (1874); Chapin v. Worcester, 124 Mass. 464 (1878); Grace v. Newton Board of Health, 135 Mass. 490, 494 (1883).

5 Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908); Hibben v. Smith, 191 U. S. 322 (1903); Farncomb v. Denver, 252 U. S. 7 (1920).

Stark v. Boston, 180 Mass. 293 (1902).

of law. The law must entrust the final disposition of such questions to some one and it is at least as satisfactory to entrust it to a tribunal of experts responsible to the people as to a court or jury.

In a state such as Massachusetts, in which it is held that the assessment cannot constitutionally exceed the benefit, the owner of land assessed is entitled to a hearing upon the amount of benefit which his land received. He is not entitled to be heard upon the necessity of the proposed improvement or upon its cost,' or upon the rate of assessment.8

71. Assessments under the Police Power

There is one form of pecuniary imposition which, although it to some extent assumes the form and characteristics of a special assessment, is not an exercise of the taxing power and is not subject to the constitutional limitations which apply to that branch of sovereignty. It is well settled that when an owner of land suffers it to fall into such a condition that it endangers the health and safety of the community and thereby constitutes a public nuisance, the state may, in the exercise of what is commonly called the police power, compel him to abate the nuisance at his own expense. As an incident to this power and as a convenient means of putting it to practical accomplishment, if the owner declines to abate the nuisance the state may do the work itself and recover the cost from the owner, and as a means of collecting the cost may make it a lien. on the land and enforce the lien in the same manner as liens for taxes are enforced. In such a case whether an estate is benefited to the extent of the cost assessed upon it is of no importance.1

It is perhaps as an exercise of this power that owners or occupants of houses abutting upon public ways are compelled to clear the sidewalks of snow at their own expense although such requirement seems to go beyond the usual exercise of that branch of the police power, especially if the fee of the street

Collins v. Mayor & Aldermen of Holyoke, 146 Mass. 298 (1888); Allen v. Charlestown, 111 Mass. 123 (1872); Prince v. Boston, 111 Mass. 226 (1872); Holt v. Somerville, 127 Mass. 408 (1879).

8 Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242 (1900).

1 Nickerson v. Boston, 131 Mass. 306 (1881). See also Salem v. Eastern R. R. Co., 98 Mass. 431 (1868); Cambridge v. Munroe, 126 Mass. 496 (1879).