G. L. c. 40, §§ 16, 17, 18] other officer; and such board or officer shall, as soon as may be after the first day of April, cause a list of such ways or portions thereof to be made, specifying each estate and the number of linear feet. thereof abutting thereon, the amount per linear foot, the amount on each estate of such assessment, and certify and commit said list to the assessors of taxes. In a town such assessment shall be made by the assessors.

SECTION 18.

The assessors shall include such assessment in the tax list and warrant committed by them to the collector of taxes for that municipal year, and it shall be included in the next annual tax bill, or if the estate so assessed is otherwise exempt from taxation, it shall be rendered as a tax bill. Such assessment shall be a lien upon the estate, and shall be levied, collected, reassessed, paid, apportioned, and bear interest and become payable, in the same manner as, and shall be a part of, the tax for that year on such estate; but in cities the assessors shall make no abatement thereof except upon the recommendation of the board or officer by whom the list was certified to them.

The constitutionality of imposing upon abutting property even part of the cost of sprinkling streets was sustained with some hesitation by the supreme judicial court when it was first questioned, and the court declared that it was a grave question whether the benefit to be derived from a regular sprinkling of the streets was of such a character that it could be the subject of a betterment assessment. The assessment may not in any event exceed the benefit to the property assessed, and if land is owned or used in such a way that the sprinkling of the streets upon which it abuts is of little or no benefit to it, the assessment will not be sustained."

The assessment of the cost or a portion thereof in proportion to the linear feet of frontage of abutting lots has been attacked as an arbitrary method of apportioning the cost, since it is not based on the actual benefit. It has however been held that the statutes which authorize such a method of assessment are capable of a construction which violates no constitutional principle. Assessment in proportion to frontage may be the

1 Sears v. Aldermen of Boston, 173 Mass 71 (1899).

2 Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914).

3 Statutes now included in G. L. c. 40, § 17, were sustained in Sears v. Aldermen of Boston, 173 Mass. 71 (1899); Phillips Academy v. Andover, 175

[G. L. c. 40 §§ 16, 17, 18 fairest method in districts which are thickly settled and in which the lots are used for similar purposes and are generally similar in size and depth, and a provision for appeal and abatement is ample protection in the peculiar cases in which such an assessment in fact exceeds the benefit. It has been held that the provisions in the statutes relating to the abatement of street watering assessments plainly imply that the owner of land so assessed is entitled to a hearing before the board or officer authorized to abate or to recommend the abatement of such an assessment, and that it is the duty of such board or officer to abate or recommend the abatement of such assessment if disproportionate or in excess of the benefit actually conferred upon the land assessed. Accordingly, the statutes are constitutional and the remedy by petition for abatement is exclusive.*

A street watering assessment is not included in the statutory exemption of educațional or charitable institutions or other like organizations from general taxation, and if the grounds of an academy or a cemetery or other tract of land devoted to a quasi public use actually receive benefit from the sprinkling of the streets upon which it abuts, it may be assessed therefor.5

In determining the cost of watering streets, the value of the water furnished by the city from its own water supply may be considered. If the officer of the city whose duty it is to determine the amount of the assessment on each estate fails to do so, but the assessors have before them the requisite data and make the assessment accordingly, it is not such an irregularity as to require the assessment to be quashed.'

Mass. 118 (1900); Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908), and Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914). A special act applicable to Boston was sustained in Stark v. Boston, 180 Mass. 293 (1902). 4 Stark v. Boston, 180 Mass. 293 (1902); Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908). If however property is owned or held in such a way that it can derive no benefit from street watering, the validity of a streetwatering assessment can be attacked in a bill in equity to remove a cloud upon the title consisting of a sale for non-payment of the assessment. Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914).

5 Phillips Academy v. Andover, 175 Mass. 118 (1900); Garden Cemetery Corporation v. Baker, 218 Mass. 339 (1914).

6 Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908).

7 Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908). For other decisions relative to street watering assessments see Ward v. Aldermen of Newton, 181 Mass. 432 (1902); Hodgdon v. Haverhill, 193 Mass. 327 (1907). For the statute authorizing street watering assessments in Boston see St. 1899, c. 366.

G. L. c. 40 § 53]

Restraint of Illegal Appropriations

SECTION 53. If a town or any of its officers or agents are about to raise or expend money or incur obligations purporting to bind said. town for any purpose or object or in any manner other than that for and in which such town has the legal and constitutional right and power to raise or expend money or incur obligations, the supreme judicial or superior court may, upon the petition of not less than ten taxable inhabitants of the town, determine the same in equity, and may, before the final determination of the cause, restrain the unlawful exercise or abuse of such corporate power.

In the early history of this commonwealth the customary method of contesting the validity of appropriations of money by a town was to refuse to pay the tax by which the money was to be raised and thus oblige the collector to enforce payment by distress, and then to bring an action of trespass against the assessors of the town for including the questioned amount in the tax warrant; and if the objection to the validity of the appropriation was sustained the assessors were liable for the full value of the property distrained.1 In 1823 a statute was enacted exempting assessors from liability for assessing taxes wrongly, except for their own want of integrity and fidelity,2 and it then became the recognized method of contesting the validity of an appropriation by a town to pay the tax under protest and then to bring an action against the town itself for money had and received; and it was held that the inclusion of a single improper item in the annual tax-warrant invalidated the whole assessment of that year.3 In 1859 a statute was enacted limiting the recovery in such cases to the illegal portion of the tax, and this statute for all practical purposes effectually put an end to the method of contesting the validity of an appropriation by action against the town. In the meanwhile, in 1847 the legislature had provided a more appropriate means of contesting the validity of an expenditure by a city or town by enacting

1 Stetson v. Kempton, 13 Mass. 272 (1816); Libby v. Burnham, 15 Mass. 144 (1818); Inglee v. Bosworth, 5 Pick. 498 (1827); See also G. L. c. 59 § 87, infra page 314.

2 St. 1823 c. 138 § 5.

3 Goodrich v. Lunenburg, 9 Gray 38 (1857); Gerry v. Stoneham, 1 Allen

319 (1861).

4 St. 1859 c. 118 §§ 3, 4.

[G. L. c. 40 § 53 that "when a town votes to raise by taxation or pledge of its credit, or to pay from its treasury, any money, for a purpose other than those for which it has the legal right and power, the supreme judicial court may, upon the suit or petition of not less than ten taxable inhabitants thereof, briefly setting forth the cause of complaint hear and determine the same in equity."

This statute, though of great service, was limited in its scope to actual appropriation, expenditure or pledge of the town's credit, and could not be invoked to prevent the town from embarking upon an undertaking which might lead to taxation in the future but for which no immediate appropriation or pledge of credit had been made 5 and it had no application to action by a town official purporting to be taken in behalf of the town and of a kind which the town could have legally authorized, but which was in fact in excess of the statutory authority of the official, or in violation of his instructions from the town. In 1898 the statute was altered to its present form so as to apply to the appropriation or expenditure of money or the incurrence of obligations purporting to bind the town, either by the town itself or by any of its officers or agents in excess of its or their authority.R

7

There are some limits to the application of the statute, even in its present form. It cannot be invoked against the commonwealth or its officers and there is grave doubt if it applies to an independent board of public officers appointed by the governor but authorized to expend the money of a city or town.8 The ten taxable inhabitants do not represent the town and cannot rescind or compel the town to rescind a contract entered into by the town under such circumstances as to render it

5 Carlton v. Salem, 103 Mass. 141 (1869); Mead v. Acton, 139 Mass. 341 (1885).

6 Thus a petition under the statute will now lie to restrain the town treasurer from paying town officers greater salaries than they are entitled to receive, Faulkner v. Sisson, 183 Mass. 524 (1903); Welch v. Emerson, 206 Mass. 129 (1910); to prevent the mayor from constructing sidewalks and paving streets in excess of his statutory authority, Draper v. Mayor of Fall River, 185 Mass. 142 (1904); to prohibit the board of health from expending money in obedience to a vote of the city council in excess of its authority, Goddard v. Lowell, 179 Mass. 496 (1901); or in disobedience to a vote within its authority, Oliver v. Gale, 182 Mass. 39 (1902).

7 Hodgdon v. Haverhill, 193 Mass. 406 (1907). 8 Codman v. Crocker, 203 Mass. 146 (1909).

9

G. L. c. 40 § 53] voidable at the election of the town. Petition under the statute cannot be used to collaterally impeach an action or adjudication of public officers which stands until directly overthrown; it is not the proper method of trying title to office 10 or of questioning the acts of the proper authorities in laying out highways when the subject-matter is within their jurisdiction." The court on a petition under the statute cannot consider the qualifications of public officials or the good faith of their conduct.12

The proceedings on a petition under this statute are in equity and are governed by equitable doctrines. An injunction. will not be granted for technical error when there is no real violation of law; 13 and will be refused if the petitioners have been guilty of laches.1 Laches will be attributed to the petitioners if they have allowed work to be done on the credit of the town and debts incurred without interfering until the money is about to be paid;15 but laches cannot be attributed to parties merely because they knew of the proposed unlawful expenditure and did not interfere if no such action had been taken by the town as to warrant the granting of an injunction under the statute.16 If without laches on the petitioners' part the money has been actually paid, the court will order it repaid to the town by persons who received it with notice of the illegality or by the official who turned it over without lawful authority.18

17

When the petition is granted petitioners are entitled to costs, to be paid in some instances from the fund in controversy, and to include counsel fees based not upon the actual

19

9 Seward v. Revere Water Co. 201 Mass. 453 (1909).

10 Prince v. Boston, 148 Mass. 285 (1889).

11 Fisk v. Springfield, 116 Mass. 88 (1874). A petition under the statute is not the proper method of contesting the constitutionality of a statute authorizing the construction of a public work by a city or town on the ground that proper provision had not been made for compensation to owners of land injuriously affected. Prince v. Crocker, 166 Mass. 347 (1896); Higginson v. Boston, 212 Mass. 583 (1912).

12 Hodgdon v. Haverhill, 193 Mass. 406 (1907).

13 Freeland v. Hastings, 10 Allen 570 (1865).

14 Tash v. Adams, 10 Cush. 252 (1852); Fuller v. Melrose, 1 Allen 166 (1861). 15 Tash v. Adams, 10 Cush. 252 (1852); Fuller v. Melrose, 1 Allen 166

(1861).

16 Copeland v. Huntington, 99 Mass. 425 (1868); Mead v. Acton, 139 Mass. 341 (1885).

17 Welch v. Emerson, 206 Mass. 129 (1910).

18 Frost v. Belmont, 6 Allen 152 (1863).

19 Pope v. Halifax, 12 Cush. 410 (1853); Frost v. Belmont, 6 Allen 152 (1863).