Whether the construction of a public sewer by assessments upon
adjoining property entitles the owners of such property to the free
use of such sewer, or only to the right to a free entrance to it of
their particular sewers, is a question of local policy.
Notwithstanding that such sewer was built by assessments upon the
property benefited, it is competent for the legislature to require
persons making use of it to pay a reasonable sum for such use.
Where an ordinance fixes the charges that shall be paid for the use
of a common sewer, no notice is required to be given to the
property owners of an assessment for that purpose.
This was a petition to the justices of the Supreme Judicial
Court for the County of Suffolk for a writ of certiorari to the
Board of Sewer Commissioners of the City of Brockton directing them
to bring up certain proceedings connected with the assessment of
taxes upon petitioner's land to the amount of $42.53 for the
maintenance and operation of a public sewer, and for an order
quashing the proceedings.
The petitioner alleged the assessment to be illegal and
void:
1. Because the city ordinance does not provide for notice to or
hearing of persons whose estates are affected thereby, in violation
of the state constitution;
2. Because the method of computing the sewer charges is
unreasonable and disproportionate;
3. Because petitioner, having already paid for the sewers
connected with his land, cannot be compelled to pay a special tax
for the maintenance and operation of sewers from which he receives
no special benefit;
4. Because such tax or sewer rental is in violation of the
Fourteenth Amendment to the federal Constitution;
5. Because such tax is permissible only when founded upon
peculiar and special benefits to the property so taxed, and then
only to the amount of such benefits;
Page 182 U. S. 399
6. Because lands assessed for the construction of sewers cannot
be said to receive an additional and special and peculiar benefit
from the general oversight and operation of the same.
By an Act of the Legislature of Massachusetts passed May 6,
1892, c. 245, "to give greater powers to cities and towns in
relation to the construction of sewers," it was enacted as
follows:
"SEC. 1. The city council of any city except Boston, or a town
in which common sewers are laid under the provisions of sections
one, two and three of chapter fifty of the Public Statutes, or a
system of sewerage is adopted under the provisions of section 7 of
said chapter, may by vote establish just and equitable annual
charges or rents for the use of such sewers, to be paid by every
person who enters his particular sewer into the common sewer, and
may change the same from time to time. Such charges shall
constitute a lien upon the real estate using such common sewer, to
be collected in the same manner as taxes upon real estate, or in an
action of contract in the name of such city or town. Sums of money
so received may be applied to the payment of the cost of
maintenance and repairs of such sewers or of any debt contracted
for sewer purposes."
Pursuant to this authority, the City Council of Brockton, on
August 23, 1894, adopted an ordinance, of which the following is
the material provision:
"SEC. 4. Every person or owner of an estate who enters his
particular sewer into a common sewer shall pay for the use of such
sewer an annual rental determined upon the basis of water service,
as follows: for unmetered water service, eight dollars; for metered
water service, thirty cents cents per 1,000 gallons of sewage
delivered to the sewer, the quantity so delivered to be determined
by the meter readings taken by the water commissioners, but the
annual charge shall in no case be less than eight dollars, it being
provided, however, that in cases where said commissioners shall
deem the same to be equitable, a discount may be made, such
discount to be determined by said commissioners and approved by the
mayor and aldermen, and it being further provided that any such
person or owner may place at his own expense a water meter, which
shall be approved
Page 182 U. S. 400
by the said commissioners, to measure the amount of water which
does not enter the sewer."
"Such charges shall be collected quarterly, and shall constitute
a lien upon the real estate using the sewer, to be collected in the
same manner as taxes upon real estate, or in an action of contract
in the name of the City of Brockton."
The petition was denied, and petitioner sued out this writ of
error.
MR. JUSTICE BROWN delivered the opinion of the Court.
This case involves the single question whether a municipal
ordinance making an annual assessment upon property owners for the
use of a common sewer infringes upon any provision of the
Constitution of the United States.
The Supreme Judicial Court of Massachusetts held that the
petitioner received a special benefit in the use of the sewer for
which he might be charged; that the city, by building the sewer and
receiving a part of its cost from the petitioner, did not bind
itself that the sewer should be maintained forever or that the
petitioner should be at liberty to use it free of further expense;
that the charge for using it was a benefit distinct from that
originally conferred by building it; that there was no charge
unless the sewer were used; that the only questions were whether
petitioner's sewer entered the common sewer, and what amount of
sewage was delivered to it, and that, if the petitioner wished to
be heard on either of these facts, he could resort to the courts;
that the city council had a right to fix the charges without notice
to the parties interested unless, under the pretense of fixing an
equitable rate, the ordinance should do what amounted to the taking
or destruction of property.
The ordinance imposes an annual rental of eight dollars for
Page 182 U. S. 401
unmetered water service, and for metered water service thirty
cents per 1,000 gallons for sewage delivered to the sewer -- the
quantity to be so delivered to be determined by the meter readings
-- with the privilege to the commissioners of making a discount
when equitable. As the Supreme Judicial Court held that the
municipality had power to adopt this ordinance under the public
statutes of the commonwealth, and that such statutes were no
violation of the state constitution, we are concerned only with the
question whether the petitioner was thereby deprived of his
property without due process of law or denied the equal protection
of the laws within the Fourteenth Amendment.
The validity of the legislative act is assailed upon the ground
that no notice was required to be given to the property owner, nor
provision made for a hearing, and that the authority given to the
City Council of Brockton to change the rate of sewerage charges and
assessments from time to time manifested an intention on the part
of the legislature to assess such property without regard to
benefits. There is no doubt that when land is proposed to be taken
and devoted to the public service, or any serious burden is laid
upon it, the owner of the land must be given an opportunity to be
heard with respect to the necessity of the taking and the
compensation to be paid by the city.
Davidson v. New
Orleans, 96 U. S. 97;
Palmer v. McMahon, 133 U. S. 660;
Stuart v. Palmer, 74 N.Y. 183, subsequently reexamined in
this Court in
Spencer v. Merchant, 125 U.
S. 345.
Obviously these cases have no application to an ordinance which
fixes beforehand the price to be paid for certain privileges, and
leaves it optional with the taxpayer to avail himself of such
privileges or not. As well might it be insisted that an ordinance
which fixes water rates proportioned to the amount furnished is
void because no notice is required to be given before such rate is
fixed or the taxpayer is assessed his proportionate charge under
the ordinance. Where the use of such privilege is left optional
with the taxpayer by his election to avail himself of it or not, he
contracts with the city to pay the rental fixed by its ordinance if
he elect to use it. In such case, there is no room for the question
of notice. Where notice will
Page 182 U. S. 402
avail nothing, no notice is required.
Reclamation District
v. Phillips, 108 Cal. 306;
Amery v. Keokuk, 72 Ia.
701;
Commonwealth v. Lehigh Valley Railroad Co., 129 Pa.
429.
Thus, in
Hagar v. Reclamation District, 111 U.
S. 701, it was said by Mr. Justice Field (p.
111 U. S.
708):
"Undoubtedly, where life and liberty are involved, due process
requires that there be a regular course of judicial proceedings,
which imply that the party to be affected shall have notice and an
opportunity to be heard; so also where title or possession of
property is involved. But where the taking of property is in the
enforcement of a tax, the proceeding is necessarily less formal,
and whether notice to him is at all necessary may depend upon the
character of the tax and the manner in which its amount is
determinable. . . . Of the different kinds of taxes which the state
may impose there is a vast number of which, from their nature, no
notice can be given to the taxpayer, nor would notice be of any
possible advantage to him, such as poll taxes, license taxes (not
dependent upon the extent of his business), and, generally,
specific taxes on things or persons or occupations. In such cases,
the legislature, in authorizing the tax, fixes its amount, and that
is the end of the matter."
See also Parsons v. District of Columbia, 170 U. S.
45. Under the circumstances of this case, no notice was
necessary.
Similar considerations apply to the defense that petitioner has
been, or is about to be, deprived of his property without due
process of law. But of what property has he been deprived? None
whatever. There has not been, nor is there anything to indicate
there ever will be, any taking of his property within the meaning
of the law. Assuming that the imposition of a burden which
manifestly belongs to the public, upon private property,
constitutes a deprivation of such property within the meaning of
the Fourteenth Amendment, there is nothing of the kind involved in
this case. There is not even compulsory taxation of the property.
The act of the legislature (chap. 245, act of 1892) merely provides
that the city council
"may by vote establish just and equitable annual charges or
rents for the use of such sewers, to be paid by
Page 182 U. S. 403
every person who enters his particular sewer into the common
sewer, and may change the same from time to time."
The municipal ordinance fixes the annual rentals, determinable
upon a certain basis of water service, with a provision that the
commissioners may make an equitable discount from such rates at
their discretion. This was all there was to it. The lot owner could
use the sewer or not, as he chose. If he used it, he paid the
rental fixed by the ordinance. If he made no use of it, he paid
nothing. There is no element of deprivation here, or even of
taxation, but one of contract, into which the lot owner might or
might not enter. There is no allegation in the petition that the
petitioner was required by the board of health to discharge into
the public sewer. There is no allegation that the particular
charges fixed by the commissioners are unreasonable -- only that
the method is unreasonable -- that is, that any charge is
unreasonable.
The stress of petitioner's argument appears to be laid upon the
proposition that, his property having been once assessed for the
construction of the common sewer, he has a right to the free use of
such sewer forever afterwards, and that the expense of its
maintenance must be raised by general taxation, and not by special
assessment. This, however, is a question of state policy. It was
for the legislature to say whether the construction of the sewer
entitled the adjoining property owners to the free use of it, or
only to the right to a free entrance to it of their particular
sewers. As held by the Supreme Judicial Court, there can be no
doubt that the adjoining property owners did receive a special
benefit in being permitted to discharge their private sewers into
it. The amount of such benefit was, under the statutes of the
commonwealth, determinable by the city council, which fixed upon a
certain rate for unmetered service and a certain other rate per
1,000 gallons of sewage discharged for metered service. We have
held in the recent case of
Parsons v. District of
Columbia, 170 U. S. 45, that
it was competent for the legislative power to assess the amount of
benefit specially received by abutting property, and so long as
such amount is not grossly excessive or out of all proportion to
the benefit received, there is no reason to complain,
Page 182 U. S. 404
particularly if, as held by the Supreme Judicial Court in this
case, the question of connecting with the public sewer be left
optional with the property owner.
The case is somewhat analogous to that of
Sands v. Manistee
River Improvement Co., 123 U. S. 288,
wherein we held that the exaction of tolls, under a state statute
for the use of an improved national waterway is not within the
prohibition of the due process of law clause of the Constitution.
Said Mr. Justice Field (p.
123 U. S. 293):
"The tolls exacted from the defendant are merely compensation
for benefits conferred, by which the floating of his logs down the
stream was facilitated. . . . Tolls are the compensation for the
use of another's property or of improvements made by him, and their
amount is determined by the cost of the property or of the
improvements, and consideration of the returns which such values or
expenditures should yield. The legislature, acting upon information
received, may prescribe at once the tolls to be charged, but
ordinarily it leaves their amount to be fixed by officers or boards
appointed for that purpose."
It is true that, in
Sears v. Street Commissioners of
Boston, 173 Mass. 350, decided in May, 1899, construing a
similar statute applicable to the City of Boston, the Supreme
Judicial Court made a decision which it is difficult to reconcile
with its opinion in the case under consideration, and held
that,
"where lands have paid assessments for special benefits from the
construction of all sewers by whose operation they are affected, it
cannot be said that they receive an additional special and peculiar
benefit from the general oversight and operation of the sewers of
Boston such as to subject them to a second special assessment.
Expenses of this kind should be made the subject of general
taxation,"
citing a number of cases in support of this proposition, none of
which appear to be in point.
Hammett v. Philadelphia, 65
Pa. 146, was a case of widening and repaving a public street;
In re Washington Avenue, 69 Pa. 352, one of compelling the
owners of farm lands lying within one mile on each side of a public
highway to pay for grading, macadamizing, and improving it by an
assessment upon their lands by the acre;
Appeal of
Williamsport, 187 Pa. 565, one of
Page 182 U. S. 405
reconstructing a sewer originally built by the city;
Erie.
v. Russell, 148 Pa. 384, a similar case, except that the sewer
was originally built by local assessments;
Dietz v.
Neenah, 91 Wis. 422, a question of want of notice;
Dyar v.
Farmington, 70 Me. 515, one of assessment for building a
railroad;
Honscon v. Omaha, 11 Neb. 37, one of the extent
to which property was benefited by constructing a sewer. It needs
no argument to show that these cases had no pertinence. The
question of notice or want of notice was also considered in the
Sears case, but the court did not decide that question,
intimating, however, an opinion somewhat adverse to the validity of
the statute upon this ground.
We are not required, however, to reconcile these cases. It is
sufficient that the Supreme Judicial Court held that this case
was
"free from the elements which, in
Sears v. Boston Street
Commissioners, led to the conclusion that the petitioner was
assessed without regard to the benefits received by him."
Notwithstanding the former case, we think the court was correct
in holding in this case that the petitioner and other property
owners whose lots abutted on this public sewer did receive a
benefit not common to the inhabitants of the city generally in
being permitted to discharge into it the contents of their private
sewers, that the amount of such benefit was determinable by the
city council, and that in its action there was nothing violative of
the federal Constitution. It was properly said by Chief Justice
Holmes in this connection:
"No one denies that it was a special benefit to the petitioner
to have a sewer built in front of his land. That benefit was the
probability that the sewer would be available for use in the
future. But the city, by building it and receiving a part of the
cost from the petitioner, did not impliedly bind itself or the
general taxes that the sewer should be maintained forever, and that
the petitioner should be at liberty to use it free of further
expense. If building the sewer was a special benefit, keeping the
sewer in condition for use by such further expenditure as was
necessary was a further special benefit to such as used it."
The judgment of the Supreme Judicial Court is therefore
Affirmed.
