CHARLES J. O'MALLEY vs. PUBLIC IMPROVEMENT COMMISSION OF BOSTON.

CUTTER, J. This is an appeal from the trial judge's dismissal of a petition for a writ of certiorari to quash two assessment orders of the commission. The orders, dated April 13, 1960, assessed sewer betterments on fifteen of the parcels of land discussed in O'Malley v. Commissioner of Pub. Works, 340 Mass. 542, and related to the same sewers. We do not restate the facts set out in the earlier opinion.

Connections to the sewers for various parcels were made under permit as follows: September 11, 1957, three parcels; April 9, 1959, three parcels; September 14, 1959, six parcels; and between October 13, 1959, and April 13, 1960, three parcels. The two orders assessed to O'Malley and other owners of one or more of these parcels a portion of the cost of the two sewers in the amount of "the value of the benefit . . . other than the general advantage to the community, received by each . . . parcel . . . from the public improvement" by the two sewers completed August 18, 1949. The assessments range from $106 to $180 per lot. The lots vary slightly in frontage (from forty to sixty feet except for corner lots) and in size (from about 5,000 to about 8,000 square feet). O'Malley has alleged that he is engaged in the construction of a dwelling on each lot and

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is liable for the payment of the assessments if they are valid.

1. O'Malley contends that those assessments, not made within six months after the particular sewer connections, were not made seasonably. The assessments were made under St. 1897, c. 426, Section 7A, [Note 1] inserted by St. 1945, c. 511, Section 2. The 1945 amendment separated into two sections, Section 7 [Note 2] and Section 7A, statutory provisions closely similar to those which theretofore had been combined in Section 7 as amended by St. 1912, c. 371, Section 1. [Note 3] Section 7, as amended in 1945, restricts (see first italicized passage, footnote 2, supra) original betterment assessments to a period of "six months after any new sewer . . . is completed." Section 7A contains no such language. This omission hardly can have been an inadvertence, for the 1945 amendment of Section 7 cut

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down the period within which an original assessment could be made from two years (see footnote 3, supra) to six months. Although the Legislature's attention was thus drawn specifically to the matter of limitations upon the period of assessments, no such limitation was inserted in Section 7A with respect to assessments thereafter made upon later connections with sewers. The matter in this respect was left without limit of time as it had been under the old Section 7.

The bill (1945 House Bill No. 1190) was enacted in substantially (see 1945 House Journal, p. 821) the form of bill annexed to a petition of the chairman of the board of street commissioners of Boston, obviously a person familiar with the problems of sewer assessments. The omission from Section 7A of any time limitation upon making assessments upon later connections was appropriate. Connections to sewers might be made, as here, long after the expiration of a period of six months from the date of completion of a sewer. The Legislature reasonably could have felt that no time limitation, based upon the completion of the sewer, should be imposed upon assessments under Section 7A, which were to be made only after sewer connections.

We need not now decide whether an assessment under Section 7A could be barred on some principle analogous to laches, if not made within a reasonable time (see Commissioner of Corps. & Taxn. v. Malden, 321 Mass. 46, 51-52) after the connection of a particular parcel of land with a sewer. The longest period between the sewer connection and the assessment in the present case was from September 11, 1957, to April 13, 1960, a period of about two years and seven months. This lapse of time in the circumstances is not unreasonable. [Note 4]

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2. We hold that Section 7A does not permit a sewer betterment assessment in excess of the special benefit conferred upon the assessed property. There is in Section 7A no express limitation of such an assessment to "the amount of the special benefit received" (cf. language of Section 7) but Section 7A does provide that the assessment shall be only of "a reasonable part of the cost of construction." In the light of the authorities referred to below, it is plain that an assessment in excess of the benefit conferred would not be "reasonable" and, accordingly, we interpret Section 7A in a manner which avoids doubts about its constitutionality. See Ferguson v. Commissioner of Corps. & Taxn. 316 Mass. 318, 323-324; New England Tel. & Tel. Co. v. National Merch. Corp. 335 Mass. 658, 664; Worcester County Natl. Bank v. Commissioner of Banks, 340 Mass. 695, 701.

In the earlier O'Malley case, 340 Mass. 542, 549, it was said that "nothing in" Section 7 or Section 7A "constitutes statutory authority . . . to require either a permit or a fee, as opposed to a betterment assessment, for a permit to connect with an existing sewer." Section 7A was there regarded as authorizing an assessment on betterment principles, and thus necessarily subject to the constitutional limitations upon "an assessment to be made under the general taxing power . . . and not the police power." The 1945 insertion of Section 7A was adopted long after the decisions in Sears v. Street Commrs. of Boston, 173 Mass. 350, 352, White v. Gove, 183 Mass. 333, 335, and Crofts v. Assessors of No. Adams, 261 Mass. 191, 201-202, in all of which it was stated that special assessments for the cost of public improvements are unconstitutional if in substantial excess of the benefits received. We view Section 7A as a statute adopted in the light of, and intended to comply with, this controlling constitutional principle as theretofore stated by this court. See Mathewson v. Contributory Retirement Appeal Bd. 335 Mass. 610, 614-615.

Our interpretation of Section 7A is further supported by the last sentence of Section 7A which makes applicable to Section 7A assessments certain provisions of G. L. c. 80, including Section 5 (as amended through St. 1933, c. 157, Section 2).

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Section 5 in turn refers to the standards of assessment under c. 80, Section 1. Section 1 (as amended through St. 1933, c. 254, Section 62) requires (a) that the assessment be "a proportionate share of the cost of . . . [the] improvement" fixed after a determination of "the value of such benefit . . . to the land within . . . [the affected] area," and (b) that it "shall [not] exceed the amount of such adjudged benefit." Our view of Section 7A is consistent with the interpretation of somewhat similar statutes in earlier decisions of this court. See Carson v. Sewerage Commrs. of Brockton, 175 Mass. 242, 244, affd. 182 U.S. 398; Stark v. Boston, 180 Mass. 293, 295; Cheney v. Beverly, 188 Mass. 81, 84-85; Corcoran v. Aldermen of Cambridge, 199 Mass. 5, 12-14; Nichols, Taxation in Massachusetts (3d ed.) 758-762.

3. The city is not an "owner of" an "estate [who] has paid for such sewer or has paid any assessment for its construction" within the meaning of those words in Section 7A. See footnote 1, supra, first italicized passage. To be sure, the city had an ownership interest in the parcels, either as holder of a tax title or by tax title foreclosure, in 1941 or 1942 (see 340 Mass. 542, 544) when it paid for the sewers. The city's title was acquired as an incident of its tax collecting function (see 340 Mass. 542, 545-546) rather than as a purchase for usual municipal purposes. Its payment for the sewers was not because of any betterment assessment upon it as the owner of land receiving a benefit, but from funds appropriated for a public improvement by the city as a municipality. The language quoted above from Section 7A was plainly intended to prevent a second assessment under Section 7A to any person who was (or claimed by, through, and under) an owner who had theretofore paid a betterment assessment based upon the benefit to his land from the same improvement. The language has no application here.

O'Malley argues that the city upon the sale following the tax title foreclosure (see St. 1943, c. 434, Section 4; cf. G. L. c. 60, Section 77, as amended through St. 1938, c. 339, Section 3, later amended by St. 1953, c. 654, Section 37)

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was required to obtain "the fair value of the property" by sale at public auction and that, accordingly, the price received by the city must have reflected the benefit of the presence of the sewer. The record does not establish that this was the fact. When the sale after the tax title foreclosure took place, the parcels remained subject to the possibility (now embodied in Section 7A as we interpret it) of a later betterment assessment for the sewer improvement when the parcels were connected in fact with the sewer, for no earlier betterment assessment had been paid. It has not been shown that the price received by the city was not depressed by the possibility of such a later assessment rather than increased by the existence of the sewer.

4. The judgment dismissing the petition is affirmed.

So ordered.