G. L. c. 70, §§ 3-6 inc.] bursement shall in each case be in such proportion to the reimbursement provided for in said section as his service bears to full time service. No town in a superintendency union shall receive under this chapter reimbursement for the part time employment of a superintendent if entitled to reimbursement therefor under section sixtyfive of chapter seventy-one. SECTION 4. Every town whose valuation, including omitted assessments, for the year next preceding the date of payment, when divided by the net average membership of its public day schools as defined in section five for the year ending on the next preceding June thirtieth, yields a quotient less than forty-five hundred dollars shall, for each person for whom it received reimbursement under section two, receive supplementary reimbursement as follows: (1) Three hundred dollars if said quotient is less than two thousand. (2) Two hundred and fifty dollars if said quotient is less than twenty-five hundred but not less than two thousand. (3) Two hundred dollars if said quotient is less than three thousand but not less than thirty-five hundred. (4) One hundred and fifty dollars if said quotient is less than thirty-five hundred but not less than three thousand. (5) One hundred dollars if said quotient is less than four thousand but not less than thirty-five hundred. (6) Fifty dollars if said quotient is less than forty-five hundred but not less than four thousand. For each person for whom any such town received proportionate reimbursement under section three it shall in each case receive as supplementary reimbursement the same proportion of the sums named herein for full time service. SECTION 5. For the purposes of section four the net average membership of the public day schools of a town for any school year shall be the average membership for such year as shown by the school registers, increased by the number of pupils resident therein whose tuition in the public schools of another town, for not less than half such year, the town has paid, decreased by the number of non-resident pupils attending its schools for not less than half such year. SECTION 6. No town shall be entitled to reimbursement under Part I of this chapter on account of salaries paid to teachers whose employment in state-aided vocational schools or departments, con [G. L. c. 70, §§ 6, 7 tinuation schools or Americanization classes entitle the town to state reimbursement. For every teacher in a practice school connected with a state normal school, part or all of whose salary is paid or reimbursed by the commonwealth, the town's reimbursement under this. chapter shall be proportionate to the part thereof paid by it. SECTION 7. Every superintendent of schools shall file with the commissioner of education, not later than August first in each year, a sworn statement, upon blanks prepared by the commissioner, containing the data necessary to determine the amounts payable under Part I of this chapter. Before filing such statement, the superintendent shall submit it to the chairman of the school committee, who shall countersign it on oath, if, after examination, he finds it correct. The commissioner shall cause such statements to be examined, and shall transmit them to the state treasurer, with a tabulation showing the amount due each town. These sections were enacted in 1919, the same year when the permanent provision for the income tax was adopted.1 There is distributed in accordance with the provisions of these sections about four million dollars annually, and this sum is taken from the income tax each year before the distribution provided in chapter fifty-eight is put into effect. The effect of this statute is not to increase the aggregate amount of income tax distributed to the cities and towns each year, but to modify the method of distribution, so that some towns receive more and others less than they would receive if the entire tax were distributed in accordance with the method established by chapter fifty-eight; in general, small towns in remote sections of the state, in which there is a relatively small amount of taxable property benefit at the expense of the manufacturing cities. There is no obligation that the money received under these sections be applied to educational purposes; it is paid into the treasury of the town and may be appropriated for any municipal purpose. The constitutionality of these sections has been assailed, on the ground that they authorize the levy of a tax upon a particular class of property for a particular public use from which the property taxed derives no special and peculiar benefit; but this objection was not sustained.2 1 G. L. c. 58, §18. 2 Knights v. Treasurer & Receiver General, 237 Mass. 493 (1921). CHAPTER 79 EMINENT DOMAIN General Provisions as to Betterments IT IS provided in section one that an order for the taking of land by eminent domain shall, in case the improvement for which the taking is made is one for which betterments may be assessed, state whether betterments are to be assessed therefor. It is provided in section nine that when injury is caused to real estate in pursuance of a formal vote or order of a board of public officers although there is no taking, and the owner of the real estate is under the law entitled to damages, if the order establishes a public improvement for which betterments may be assessed, it shall state whether betterments are to be assessed therefor. In section twelve it is provided that, in assessing damages, benefits shall be set off unless it was stated in the order of taking, or in the order establishing the improvement, that betterments were to be assessed. Settlement and Assumption of Betterments SECTION 39. Whenever damages may be recovered under this chapter, the body politic or corporate liable for such damages may after the right to such damages has become vested effect such settlement of the damages with the person entitled thereto as it may deem to be for its best interests, and it may as one of the terms of the settlement of a claim for damages growing out of the proceedings in respect of which betterments have been or are to be assessed agree in writing with the owner of the land assessed to assume such betterments. Such body politic or corporate may after the right to such damages has become vested offer in writing to pay to the person entitled to receive the same the amount which it is willing to pay in settlement thereof, with interest thereon, together with taxable costs if a petition for the assessment of such damages is pending. If an award of damages has previously been made, the offer shall not be [G. L. c. 79, § 39 of a less amount than such award. Acceptance thereof may be either in full satisfaction of all damages so sustained, or as a payment pro tanto without prejudice to any right to have the remainder thereof assessed by the appropriate tribunal. After notice of such offer, made as aforesaid, or payment of the amount thereof, no interest shall be recovered, except upon such amount of damages as shall, upon final adjudication, be in excess of the amount of said offer; provided, that all taxable costs accruing subsequently to said offer shall be recoverable by the petitioner in all cases, except as provided in section thirtyeight. Members of a board which is authorized to levy a betterment assessment are not agents of the city or town but public officers, and they cannot lawfully delegate their duty to make the assessment or submit the amount of the assessment to arbitration, or give up by contract any valuable rights of the city or town with respect to the levy of betterments except in the manner provided by statute.' They may however consider an offer of favorable terms as to land damages in laying out a street, and although they cannot bind the city or town by an agreement not to assess betterments or to assume the betterments except in accordance with the statute, their acts taken in connection with acts of the other municipal authorities may constitute the acceptance of an offer which obligates the city or town to assume the betterments.2 The statute uses very broad language regarding the terms upon which damages may be released, and is held to authorize any reasonable arrangement in regard to the construction of the way and the effect of its construction, direct and incidental, upon the abutting property, not fraudulent or corrupt or resulting in an unfair and unjust distribution of the cost of the improvement.3 'Boylston Market Association v. Boston, 113 Mass. 528 (1873); Somerville v. Dickerman, 127 Mass. 272 (1879); Aspinwall v. Boston, 191 Mass. 441 (1906); Whitcomb v. Boston, 192 Mass. 211 (1906). 2 Bartlett v. Boston, 182 Mass. 460 (1903); Aspinwall v. Boston, 191 Mass. 441 (1906), and see also Averill v. Boston, 193 Mass. 488 (1907); Boston Water Power Co. v. Boston, 194 Mass. 571 (1907); Burrage v. Boston, 198 Mass. 580 (1908). 3 Atkinson v. Newton, 169 Mass. 240 (1897); Bell v. Newton, 183 Mass. 481 (1903). CHAPTER 80 BETTERMENTS Assessment of Betterments SECTION 1. Whenever a limited and determinable area receives benefit or advantage, other than the general advantage to the community, from a public improvement made by or in accordance with the formal vote or order of a board of officers of the commonwealth or of a county, city, town or district, and such order states that betterments are to be assessed for the improvement, such board shall within six months after the completion of the improvement determine the value of such benefit or advantage to the land within such area and assess upon each parcel thereof a proportionate share of the cost of such improvement, and shall include in such cost all damages awarded therefor under chapter seventy-nine; but no such assessment shall exceed the amount of such adjudged benefit or advantage. Although the assessment of betterments for the laying out of public ways and for some other classes of public improvements has been employed as a means of raising the necessary funds to construct such improvements in sporadic instances in Massachusetts since very early times,' it is only within the last eighty years that special assessments in their modern form, imposed by administrative officers upon the land specially benefited by a public improvement and paid directly to the public authorities, have become part of the settled policy of the commonwealth. Sewers were not public property until 1841, and assessments payable to the city or town were not authorized by statute until that year. The first general statute authorizing sidewalk assessments was enacted in 1858. In January, 1866, the supreme judicial court upheld the constitutionality of an act passed in the preceding year authorizing the assessment of betterments for the widening and laying out of certain specified streets in Boston, and in the same year a better Supra, Part I, §64, and see as to the constitutional limitations upon the levying of betterment assessments, Part I, §§65 to 72 inc. 2 Dorgan v. Boston, 12 Allen 223 (1866). |