[G. L. c. 80, §§ 5-10 inc. made use of the improvement for which the assessment was levied.5 It has been held that the statutory provisions restricting the action of contract to recover back a tax apply to special assessments as well as to general taxation, and accordingly to justify such an action payment must be under duress or protest and suit must be begun within three months of the date of payment.' What Irregularity Invalidates an Assessment To justify a special assessment there must be a public improvement laid out and constructed by authority of law. It does not follow however that an owner of land assessed for the benefit arising from a new public work can defeat the assessment by finding a flaw in the proceedings by which it was laid out or a failure to comply in all respects with the requirements of the statutes relating to the construction of such works. It is of course clear that such total disregard of the statutes providing for the laying out of public works as would invalidate the laying out itself, so that attempted construction thereunder would constitute a trespass and the proceedings themselves could be collaterally impeached whenever their validity came before a court, would render any special assessment attempted to be levied for works so laid out wholly invalid.' Mere violation of less essential requirements not relating to the assessment itself does not necessarily invalidate the assessment unless the statutory requirements violated were made for the protection of Sheehan v. Fitchburg, 131 Mass. 523 (1881); Smith v. Boston, 194 Mass. 31 (1907). 6 G. L. c. 60, $98, supra, page 400. 7 Wheatland v. Boston, 202 Mass. 258 (1909). 1 Sheehan v. Fitchburg, 131 Mass. 523 (1881) (layout so vague that it was not clear what land was taken). "Kelso v. Boston, 120 Mass. 297 (1876 (failure to keep on file plan of all sewers in city); Fairbanks v. Mayer and Aldermen of Fitchburg, 132 Mass. 42 (1882) (cost of sewer not stated but ascertainable by computation); Leominster v. Conant, 139 Mass. 384 (1885) (sewer constructed before laying out, and slight variation in size of pipe); Collins v. Holyoke, 146 Mass. 298 (1888) (failure of superintendent of sewers to report cost to mayor); Masonic Building Association v. Brownell, 164 Mass. 306 (1895) (requisite allegations in two separate orders); Beals v. James, 173 Mass. 591 (1899) (construction of temporary catch-basins); Corcoran v. Aldermen of Cambridge, 199 Mass. 5 (1908) (failure of superintendent of streets to certify data to assessors when they had the facts before them). G. L. c. 80, §§ 5-10 inc.] 3 the taxpayer. If he can show that such requirements were materially violated he may have the assessment set aside without proof that he has actually suffered damage. He cannot however defeat the assessment by evidence of negligence and delay in the construction of the work if no statute was violated.* When the statute under which a public work is constructed authorizes the assessment of a proportional share of the entire cost and part of the cost is incurred unlawfully but no more is actually assessed than was lawfully expended, the assessment is invalid; but when the statute authorizes the fixing of a certain part of the cost as the assessable cost and the sum fixed is less than the amount lawfully expended it is immaterial whether the rest of the expenditures were incurred lawfully or not.R The board which is authorized by statute to make an assessment cannot delegate the power to some other official;' but an assessment is not invalid merely because the proper board employed assistance in making it if the assessment itself is finally determined by the board. An error or irregularity in the assessment proceedings themselves which does no harm to the persons assessed and does not involve the violation of a statute enacted for their protection does not invalidate the assessment. The record of the proceedings is not defective merely because it fails to exclude the possibility of error; there must be error apparent on its face.10 If the person assessed is in doubt as to the validity of the assessment on account of the ambiguity or insufficiency of the record he must ask to have the record extended; he cannot assume that it is invalid and demand that it be quashed."1 Bowditch v. Superintendent of Streets, 168 Mass. 239 (1897); Warren v. Street Commissioners, 181 Mass. 6 (1902). In both of these cases statutory requirements as to making contracts for construction were not followed. 'Whiting v. Mayer and Aldermen of Boston, 106 Mass. 89 (1870). Warren v. Street Commissioners, 181 Mass. 6 (1902). Gardiner v. Street Commissioners, 188 Mass. 223 (1905); Morse v. Street Commissioners, 197 Mass. 292 (1908). Boylston Market Association v. Boston, 113 Mass. 528 (1873). Collins v. Mayor and Aldermen of Holyoke, 146 Mass. 298 (1888); Sears v. Aldermen of Boston, 173 Mass. 71 (1899). 9 * Whiting v. Mayor and Aldermen of Boston, 106 Mass. 89 (1870); Keith v. Boston, 120 Mass. 108 (1876). 10 Jones v. Aldermen of Boston, 104 Mass. 461 (1870); Foley v. Haverhill, 144 Mass. 352 (1887). "Ward v. Aldermen of Newton, 181 Mass. 432 (1902); Tileston v. Street Commissioners of Boston, 182 Mass. 325 (1902). [G. L. c. 80, § 5 Inasmuch as a special assessment is generally levied upon the land and not upon the owner, if the land is properly described, failure to name the owner correctly does not invalidate the assessment.12 A description of the land sufficient to operate as a good conveyance is sufficient to base a betterment assessment upon. 13 If the name of the owner is used as a means of describing the estate an error therein does not invalidate the assessment if no one was misled or prejudiced thereby.1 Petition for Abatement SECTION 5. The owner of any real estate upon which betterments have been assessed may, within six months after notice of such assessment has been sent out by the collector, file with the board a petition for an abatement thereof, and the board within sixty days after such filing shall grant such abatement as may be necessary to make such assessment conform to section one. Such petition may be filed with the clerk or secretary of the board, or delivered by mail or otherwise at their office. The board shall within ten days after their decision upon the petition give written notice thereof to the petitioner. If an assessment is abated by the board the assessment so determined shall stand as the assessment upon the land, and if it has not been paid shall be collected in the same manner as the original assessment. If the assessment has been paid, the person by whom it was paid shall be reimbursed by the body politic on behalf of which it was assessed to the amount of the abatement allowed, with interest at the rate of four per cent per annum from the time of payment. The street betterment act contained no provision authorizing an application for abatement to be made directly to the board which levied the assessment, and the only remedy of a person aggrieved by the amount of the assessment was to file a petition in court asking for a revision of the assessment. The statutes relating to sewer assessments and various special acts contained provisions for application for abatement to the board which levied the assessment. Even when a board levies a betterment assessment after due consideration of the facts in relation to each estate, it may wish to modify its conclusion after 12 Smith v. Carney, 127 Mass. 179 (1879); Masonic Building Association v. Brownell, 164 Mass. 306 (1895). 13 Masonic Building Association v. Brownell, 164 Mass. 306 (1895). G. L. c. 80, §§ 5, 6, 7] hearing such evidence as an owner may bring before it, and when an assessment is made by some arbitrary measure, as in the case of sewer and sidewalk assessments, the board should certainly have power to correct any injustice it may have done. The general betterment act of 1918 therefore contained a provision requiring in all cases, as the first step in proceeding for a reduction of a betterment assessment, an application for abatement to the board which levied it, with a right of appeal to the court in case the decision of the board was unfavorable. Extension of Time for Filing Petition SECTION 6. If a suit in which the validity of an assessment is drawn in question is brought within the time for filing a petition to the board for the abatement thereof or within six months after the determination of an earlier suit involving the same question, brought within the time for filing such petition, which failed for want of jurisdiction, defect of form or other like cause not decisive of the merits of the controversy, the petition may be filed within six months after the final determination of such suit. The foregoing section was first introduced in the general betterment act of 1918, in order that the procedure in betterment proceedings might correspond as far as practicable with those in eminent domain cases. The object of the statute is to authorize the deferment of petitions for abatement in cases in which the validity of the assessment is drawn in question. Appeal to the Superior Court SECTION 7. A person who is aggrieved by the refusal of the board to abate an assessment in whole or in part may within thirty days after notice of their decision appeal therefrom by filing a petition for the abatement of such assessment in the superior court for the county in which the land assessed is situated. If a single parcel of land so assessed lies in more than one county the petition may be filed in the superior court for either such county, and the court in which such petition is first filed shall have exclusive jurisdiction thereof. This section in substance continues the remedy which had been in force for many years in the case of a person aggrieved [G. L. c. 80, § 7 by the amount of his assessment, except that the petition to the superior court is now in every case an appeal from the action of the board which levied the assessment upon a petition for abatement filed directly to such board. The time for filing the petition in court is therefore based upon the date of the notice of the decision of such board, and, as in the case of appeals from boards of assessors from their refusal to abate general taxes, is limited to thirty days from the date of such notice. After the expiration of the statutory period the court has no jurisdiction of the subject-matter of a petition, and the want of jurisdiction may be taken advantage of at any time before judgment.1 3 A person assessed is not estopped from applying for an abatement by asking that the assessment be apportioned, or by petitioning for a writ of certiorari to quash the assessment on the ground of invalidity. He cannot however base an application for abatement on the invalidity of the assessment. If after the petition for abatement is entered and before it is heard the assessment is quashed in certiorari proceedings, it is proper to dismiss the petition for abatement without costs to either 'party.* At the hearing on petition for abatement the burden of proof is on the petitioner to show that the assessment is excessive and should not stand.5 In ascertaining the true amount of benefit, the course of trial and the character of the evidence is very similar to that at a trial for damages to land by the laying out of a public improvement, and the rules of evidence are much the same. The benefit is to be estimated as of the date Custy v. Lowell, 117 Mass. 78 (1875). 2 Gardner v. Boston, 106 Mass. 549 (1871). 3 Crandell v. Taunton, 110 Mass. 421 (1872); Bigelow v. Boston, 120 Mass. 326 (1876); Breed v. Lynn, 126 Mass. 290 (1879); Snow v. Fitchburg, 136 Mass. 179 (1883). 5 Breed v. Lynn, 126 Mass. 290 (1879). Bigelow v. Boston, 120 Mass. 326 (1876); Beals v. Brookline, 174 Mass. 1 (1899); Driscoll v. Northbridge, 210 Mass. 151 (1911). For the rules of evidence in eminent domain proceedings see Nichols, Eminent Domain, 2d ed. Chapter XXV. See also the following decisions on evidence in betterment proceedings. In Alden v. Springfield, 121 Mass. 27 (1876), it was held that while petitioner may introduce evidence tending to show that the assessment upon his land was too great, he is not entitled to inquire as to the proportion of the benefit to the lands of himself and the other abutters on the way, as compared with the benefit to real estate generally in the city. Such an inquiry might properly be excluded as tending to confuse the jury; and that |