Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1872-06-03

4
to demand that brief rejoinder should be made
| and the real facts again stated to the community
| To the accusations, sneers, and innuendoes con-
| tanned in the communication, we shall make no
| reply. We have endeavored to treat the city
| government with entire courtesy from the begin
ming, and have more than once meekly submit
| ted TO slight and indignity at their hands; and
| we shall not depart from the course we have
| adopted.
That the city is indebted to a large amount
we freely admit, but it does not by any means
| follow that the evil is to be remedied by raising
a senseless panic in the community and i'm
posing au Illegal, arbitrary and unjust tax. Nor
can the tyrant's plea of necessity, winch has
| always been used from the days OF LORD North
| down to the present time in behalf OF oppres-
| siye taxation, avail in free and lnteilsent
| community.
The people of this city are entirely willing to
| paw any Just and equitable tax that may be as
sessed, but they will not taHely submit to any
| other.
That fair and Just tax can be imposed, has
been fully demonstrated by the committee at a
public hearing, and we Go not feel called upon
TO argue the matter again at this time, or to say
more with regard to the general topics alluded
| TO in the MAYORS communication, but will now
| proceed TO discuss the points which the mayor
| makes in reply to the opinion of Judge Curtis
| Judge Curtis states in his opinion that the
| cost Of the improvements in Mill Brook is not,
| in his Judgment, an expenditure for drains or
| sewers ldlu ny NlltuC vi act VI loUi,
| chap 100, for which an assessment upon real
| estate may be made within the terms of that act
As this is obviously question of construc-
| ton, and it is fair 10 presume that Judge Curtis
gave no opinion upon it without referring to the
statute ITSELF there can be no doubt that the
| learned Judge and the learned mayor are at issue
| upon pure question of law
That Judge Curtis had certain plausible rea-
sons for the construction of that statute which he
adopts however "incOrrect" those reasons
tsl,nY fa1
analysis of the mayor, those who know some
thing of the legal career and reputation of that
eminent jurist will probably infer.
The mayor meets this opinion by the inquiry,
"why notP and then proceeds to quote the
statute, concluding with the statement that 1t is
more than difficult to see why that may not be
done which Judge Curtis says cannot be done.
We should not like TO undertake TO defend
Judge Curtis's opinion by stating for him any of
his reasons. 1t might possibly be suggested,
however, begging the mayors pardon, that it
does not quite follow as an infallible sequence
that because in one section of an act the city
council are authorized TO "use and appropriate
said brooks Including Mill Brook, cover
them. pave and enclose them in retain
ing walls, SO far as they shall adj
Judge necessary for the purposes of sewer
age and drainage and the public health"
and in another section the mayor and aldermen
are authorized to assess "proportionate share of
the expenditure of the city for drains and sew
eIsJ luhI IHeTeuy MIL DIOOh, anu Tue OIneT
brooks, become "drains and sewers" within the
meaning of the acn Because river is used and
walled in for purposes of sewerage, drainage
and the public health" it does not follow that it
is, within the meaning of the statute, sewer or
a drain. The terms Sewers" or drains" have
a well defined meaning in our statutes. They
have been the subject of Legislation from the
earliest times. Brooks and rivers are not "sew-
ers" and 'drains," except in a transferred and
tropical sense, although they may be used for
purposes of sewerage and drainage by emptying
sewers and drains proper into them.
We do not know that these are any of the con-
siderations which led Judge Curtis to his conclu-
sions, but we venture to say he had reasons
equally cogent, and of course man ought to
be very eminent as jurist before he undertakes
to dispose Of Judge Curtis legal opinion by
"why notP and an assertion that he is 'palpa
bly, Incorrect in his law.
In the second place the mayor says that no
portion of the cost of the Mill brook sewer is in
cluded in the present assessment, and only about
seventy-0ne per cent. of the cost of The street
sewers is covered by it.
This is mere equvocation, or, indeed, worse
than an equiYocation. The order laying this
assessment, passed April Is, 1872, states in sub
stance that whereas the city of Worcester has
expended an amount exceeding one million dol
| lars in laying out and constructing sewers and
| drains, &C., and whereas it is adjudged by the
mayor and aldermen, &c., that the estates men
| toned and described in the foregoing schedule
| are benefited thereby, and whereas said mayor
| and aldermen have adjudged that the sum of
| - is the proportiOnate share of said eIpendi-
ture, to be assessed upon the owners thereof, it
| is, therefore,
Ordered, that the persons, &C., &C., be, and
| they are hereby charged, &C., &c. as their
respective proportonate shares of said e1peRdi-
| ture.
| They are assessed a portion of said eIpendi-
| ttre. What expenditure As no other ex-
penditure is referred to in the preamble and or
| der, obviously it is the expenditure of "an
amount exceeding one million dollars, referred
TO at the very beginning of the preamble as the
reason and ground for making the assessment.
Now this "amount exceedings one million
| dollars" included, and was intended to include,
| Of course, the cest Of the Improvements in Mill
| Brook
The assessment is, therefore, of a "nropor-
tionate share" of "sdid expenditure" of IAN
amount exceeding one million dollars" or in
other words, proportionate share of an ex-
| penditure which includes the cost of the con-
struction Of the Mil brook improvements. 1t
is wholly beside the question to say that
the amount assessed in gross does not equal and
is only Il per cent OF the cost Of the street
sewers.
The mayor and aldermen are only authorized
| by law to assess "proportiOnate share of the
| expenditure of the city for drains and sewers"
They have by the terms of their decree under
taken 10 assess "proportionate share of said
expenditure" Now the question is, what er-
perdit,ire Of the city, &c, did they take as the
| pass from which to derive and adjudicae the
| ''proportiondte ShdreP'
They obviously took ''said expenditure" of
| IAN amount exceeding one million dollars
| from which to determine the "proportionate
| share"
This Judge Curtis says was wrong.
| III the mayor suppOses Judge Curtis was not
informed correctly as to the facts, he is mis-
taken. The order OF the mayor and aldermen
| laying the assessment was before him, and the
amount of the cost Of the street sewers and
drains, and the cost of the improvements in
Mil brook, taken from the report Of the city
engineer, were before him in detail. If his
view is "palpably Incorrect" it is an error of
law and not of fact.
1t might be inquired how Mayor Very knows
the s45O,OOO assessed Includes no part of the
cost of Mill brook improvements.
The mayor and aldermen have said that they
assessed "proportionate share of said expendi
ture OF an amount exceeding one million dol
| lars"
There is Just as much warrant, and no more
LOT saying that 1t does not include any part OF
the cost OF street sewers and drains MS for say
ing 1t does not include any part of the cost of
Mill brook improvements.
| 1t is a "proportionate share" Of the whole ex-
penditure, il any reliance is 10 be placed upon
the plain language Of the order LAYING the
| assessment.
When the mayor has leisure he will perhaps
| explain now one thing or quantity may be a
proportionate share of another thing or quantity,
and yet be no part of that other thing Or guam.
ttv.
lnregard TO the next point, relating to the right
OF the mayor and aldermen to assess under the 4th
section 10 meet debt funded under the 5th
section, inasmuch as, il the statement is correct
that there still remains OF the "amOunt exceed
ing one million dollars" more than $3.50 900,
still not provided for under the fifth section, the
opinion would not seem to apply to the present
case in that respect. Therefore at is not per.
haps profitable to consider whether Judge
Curtis or Mayor Very may BE- right upon the
law proposition.
, The next position of the mayor is that the
point made in Judge Curtis opinion in regard
TO the time when and upon what valuation the
assessments should have been made is more a
matter Of taste than law, in which former city
governments did not agree with the learned
judge.
1t is TO be regretted that Judge Curtis should
have mistaken mere matter o taste for Il
grave question of law. However, as there is no
dfsputing about taste we pass it by.
1t Is to be observed that the mayor does not
deign TO notice the last proposition of Judge
Curtis owinion; to wit, that the mode adopted
for determining the assessment laid upon the
real estate by the division Of that property into