G. L. c. 80, § 4] running over a series of years, as in the case of an apportioned betterment assessment or an assessment for an annually recurring expense, the assessment was certified to the assessors and committed by them to the collector with their warrant, at. the same time as the annual tax levy. When a single assessment was made for a permanent improvement, the assessment was committed by the board which levied it to the collector directly, and although there was no express authority for a warrant, a warrant was usually issued, and the courts on several occasions assumed that a warrant in such cases was properly issued. The general betterment act of 1918 removed all doubt by expressly requiring a warrant. The customary method of collecting a special assessment is to enforce the lien upon the land assessed, although in this commonwealth it has been not unusual to enforce payment of a special assessment by action at law against the owner of the land assessed when such method of collection was authorized by statute, and some narrow distinctions were drawn between statutes which impliedly authorized an action and those which did not. As the method of collecting special assessments by actions at law had fallen into disuse, and there was grave doubt as to its constitutionality, the present statute was so drawn as to exclude the personal liability of the landowner. In any 3 'Leominster v. Conant, 139 Mass. 384, 388 (1885); Murphy v. Clinton, 182 Mass. 198, 200 (1902). 2 In the following cases actions by cities and towns to recover special assessments have been before the courts without any intimation that any constitutional difficulty was involved in the proceeding. Boston v. Shaw, 1 Met. 130 (1840); Lowell v. Hadley, 8 Met. 180 (1844); Lowell v. Wentworth, 6 Cush. 221 (1850); Lowell v. French, 6 Cush. 223 (1850); Lowell v. Wheelock, 11 Cush. 391 (1853); Lowell v. Wyman, 12 Cush. 273 (1853); Charlestown v. Stone, 15 Gray 40 (1860); Roxbury v. Nickerson, 114 Mass. 544 (1874); West Roxbury v. Minot, 114 Mass. 546 (1874); Boston v. Boston & Albany R. R. Co., 170 Mass. 95 (1898). See also Torrey v. Wallis, 3 Cush. 442 (1849); Twycross ỵ. Fitchburg R. R. Co., 10 Gray 293 (1858). 3 When a statute authorizes the levying of an assessment but provides no means for its collection, the city or town is entitled to bring an action at common law, and if subsequently it is given a lien on the land assessed the latter remedy will be taken to be cumulative, Lowell v. Wyman, 12 Cush. 273 (1853); but if the statute which first authorizes the assessment provides for a lien and is silent as to other remedies the lien will be taken to be exclusive. Roxbury v. Nickerson, 114 Mass. 544 (1874); West Roxbury v. Minot, 114 Mass. 546 (1874). In Bumstead v. Cook, 169 Mass. 410, it was held that under the provisions of a statute applicable only to the city of Northampton, the fee for entrance to a sewer did not constitute a lien on the land. See Dewey v. Des Moines, 173 U. S. 202 (1899). [G. L. c. 80, §§ 5-10 inc. event, when an assessment is invalid and cannot be collected by any legal process, the city or town cannot recover the amount of the benefit conferred in a common law action in the nature of indebitatus assumpsit.5 In collecting an assessment by enforcement of the lien the collector acts in precisely the same manner as in collecting a general tax on real estate, and the statutes and decisions upon the sale of land, redemption and the like are equally applicable." If the assessment exceeds a statutory limit, it is void only to the extent of the illegal excess and the tax sale is not invalid.' Remedies for Excessive or Illegal Assessments There are three methods which under proper conditions can be used by the owner of land subjected to a special assessment to contest the assessment; petition for abatement, petition for writ of certiorari and action of contract to recover back the assessment after paying it under protest. These remedies are not cumulative; each has its proper sphere, and though they overlap to a certain extent great care must be taken in each case to select the proper form of action. Petition for abatement is the proceeding to be adopted when it is sought to contest the amount of the assessment. It is not a proper means for contesting the validity of the assessment.1 Petition for certiorari is a proper proceeding to be adopted when it is sought to contest the constitutionality of the statute under which the assessment is levied or the validity of the assessment itself and is the only means of contesting an assessment on account of some irregularity in the procedure of the appropriate public officials in laying out or constructing the improvement for which the assessment was levied or in levying the assessment. It is not a proper means for contesting the "Boston v. Shaw, 1 Met. 130 (1840). See for example Kelso v. Boston, 120 Mass. 297 (1876); Leominster v. Conant, 139 Mass. 384 (1885); Murphy v. Clinton, 182 Mass. 198 (1902). 'Lynde v. Malden, 166 Mass. 244 (1896). 'Crandell v. Taunton, 110 Mass. 421 (1872); Snow v. Fitchburg, 136 Mass. 179 (1883); Hall v. Staples, 166 Mass. 399, 402 (1896); Bowditch v. Boston, 168 Mass. 239 (1897). 2 Bowditch v. Boston, 168 Mass. 239 (1897); Weed v. Boston, 172 Mass. 28 (1898). G. L. c. 80, §§ 5-10 inc.] amount of the assessment, even if its excessiveness was due to errors of law.3 Action of contract is a proper means of contesting a void assessment. It is not a proper means of contesting the amount of an assessment or defeating the assessment on account of irregularities in procedure.5 It is well settled that a bill in equity will not lie to restrain a city or town or its collector of taxes from collecting an illegal or invalid special assessment." Petition for Certiorari The function of a writ of certiorari is to correct errors of law in the actions of a board or officer acting judicially, but not according to the course of the common law, and from the orders of which or whom no appeal lies. A board or officer levying or apportioning special assessments is acting judicially and certiorari will lie to it or him.' Certiorari will lie only to correct errors apparent on the record, and if a petitioner wishes to bring up a question of law not apparent on the record as it stands he must ask that the record be extended to include the ruling complained of.2 The practice is to hear the merits of the case on the petition for the writ; and the respondents should not file an answer signed by counsel but a return signed by them in person setting forth their record. This return should be signed by the mem 3 Jones v. Aldermen of Boston, 104 Mass. 461, 469 (1870); Whiting v. Mayor and Aldermen of Boston, 106 Mass. 89 (1870); Prince v. Boston, 111 Mass. 226 232 (1872); Grace v. Newton Board of Health, 135 Mass. 490 (1883); Beals v. James, 173 Mass. 591, 600 (1899); Lincoln v. Street Commissioners, 176 Mass. 210 (1900). 'Sheehan v. Fitchburg, 131 Mass. 523 (1881); Dexter ́v. Boston, 176 Mass. 247 (1900); Smith v. Boston, 194 Mass. 31 (1907). 'Wright v. Boston, 9 Cush. 223 (1852); Butler v. Worcester, 112 Mass. 541 (1873); Kelso v. Boston, 120 Mass. 297 (1876); Chapin v. Worcester, 124 Mass. 468 (1878); Taber v. New Bedford, 135 Mass. 162 (1883); Foley v. Haverhill, 144 Mass. 352 (1887). 6 Brewer v. Springfield, 97 Mass. 152 (1867); Whiting v. Boston, 106 Mass. 89 (1870); Norton v. Boston, 119 Mass. 194 (1875); Clark v. Worcester, 167 Mass. 81 (1896); Greenhood v. MacDonald, 183 Mass. 342 (1903). 'Bowditch v. Superintendent of Streets of Boston, 168 Mass. 239 (1897); Tileston v. Street Commissioners of Boston, 182 Mass. 325 (1902). Weed v. Mayor and Aldermen of Boston, 172 Mass. 28 (1898). 4 Warren v. Street Commissioners of Boston, 183 Mass. 119 (1903). Chase v. Aldermen of Springfield, 119 Mass. 556 (1876); Warren v. Street Commissioners of Boston, 183 Mass. 119 (1903). [G. L. c. 80, §§ 5-10 inc. bers of the board in office at the time it is filed even if they were not in office when the proceedings complained of took place, as the members have official knowledge of the proceedings of the board. The return is conclusive of the facts in the record alleged therein.® The issuance of the writ in the first place rests in the discretion of the court and the respondents may allege facts outside the record showing that though the record is defective justice does not require the issuance of the writ. The petitioners may not offer evidence to disprove the record, but they may dispute the extrinsic facts alleged. If the record is defective the respondents may amend it even after the petition has been heard." Certiorari is a discretionary writ, and will not be issued for technical and unimportant defects in the proceedings; and it will not be issued for the gravest irregularities if the petitioner has been guilty of laches in allowing the public money to be expended without objection for an improvement which he expects to enjoy.10 If after a hearing a writ of certiorari is ordered to issue there is nothing to be done but to quash or modify the proceedings according as the record is wholly or partially bad. It is then too late to amend the record or to raise questions of discretion." 5 Collins v. Mayor and Aldermen of Holyoke, 146 Mass. 298 (1888). Fairbanks v. Mayor and Aldermen of Fitchburg, 132 Mass. 42 (1882); Ward v. Aldermen of Newton, 181 Mass. 432 (1902). A statement in a return that petitioner was duly served with notice of the proceedings upon which the assessment was based may be contradicted by parol evidence, however, just as the record of a domestic judgment can be directly impeached for want of service. Hall v. Staples, 166 Mass. 399 (1896). 'Fairbanks v. Mayor and Aldermen of Fitchburg, 132 Mass. 42 (1882); Ward v. Aldermen of Newton, 181 Mass. 432 (1902); Janvrin v. Poole, 181 Mass. 463 (1902). By agreeing on facts inconsistent with their return, the respondents waive the objection that on a petition for certiorari the facts found by them cannot be controverted. Jones v. Metropolitan Park Commissioners, 181 Mass. 494 (1902). Chase v. Aldermen of Springfield, 119 Mass. 556 (1876); Foster v. Park Commissioners, 131 Mass. 225 (1881); Warren v. Street Commissioners, 183 Mass. 119 (1903). Jones v. Aldermen of Boston, 104 Mass. 461 (1870); Workman v. Worcester, 118 Mass. 168 (1875); Atkinson v. Newton, 169 Mass. 240 (1897); Sears v. Mayor and Aldermen of Worcester, 180 Mass. 288 (1902). 10 Whiting v. Mayor and Aldermen of Boston, 106 Mass. 89 (1870); Taber v. New Bedford, 135 Mass. 162 (1883); Grace v. Newton Board of Health, 135 Mass. 490 (1883); Atkinson v. Newton, 169 Mass. 240 (1897); Harwood v. Donovan, 188 Mass. 487 (1905). "Warren v. Street Commissioners, 183 Mass. 119 (1903). G. L. c. 80, §§ 5-10 inc.] A person who seeks to have an assessment quashed on petition for certiorari is not estopped from maintaining the petition by having applied for an abatement of the assessment or for damages from the improvement for which the assessment was levied.12 Under the law as it formerly stood, if he should be obliged to wait until the petition for certiorari was decided and it was decided against him it might be too late to file the other petitions. It is not believed that the provisions which allow a petition for abatement,13 or for damages," to be filed within six months after the determination of a suit brought to attack the validity of the proceedings require the deferment of such petitions until the suit is disposed of. Action of Contract Against the City or Town Upon well settled principles, when an invalid betterment assessment has been collected by a city or town, the person who paid it may recover it back in an action of contract against the city or town in the nature of an action for money had and received.1 The action will not lie merely because the assessment is excessive; the proper remedy in such case is an application for abatement. The action will not lie for mere irregularities in the procedure; the remedy in such case is petition for certiorari.' When however the assessment is wholly void, the action of contract is in some respects the most advantageous remedy, for the owner, if he is within his legal rights, cannot be denied recovery on account of laches or as an exercise of discretion as he may be in a petition for certiorari. He is not estopped from recovering back an assessment by reason of the fact that he has 12 Hitchcock v. Aldermen of Springfield, 121 Mass. 382 (1876). 14 G. L. c. 79, §18. 1Sheehan v. Fitchburg, 131 Mass. 523 247 (1900); Smith v. Boston, 194 Mass. 31 2 (1881); Dexter v. Boston, 176 Mass. (1907), and see also supra, page 400. * Wright v. Boston, 9 Cush. 223 (1852); Butler v. Worcester, 112 Mass. 541 (1873); Chapin v. Worcester, 124 Mass. 468 (1878). This principle does not prevent the recovery back of an unconstitutional sewer assessment, although it was collected by adding part of the assessment to the general tax bill under authority of statute. Dexter v. Boston, 176 Mass. 247 (1900). 'Kelso v. Boston, 120 Mass. 297 (1876); Taber v. New Bedford, 135 Mass. 162 (1883); Foley v. Haverhill, 144 Mass. 352 (1887). 'Smith v. Boston, 194 Mass. 31 (1907). |