Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1872-06-01
OPINION Of Indge Chris.

The citizens committee of thirty five have re-
ceiycd from Judge Curtis, of Boston, the follow
ing opinion relative to the sewer assessment,
which they publish as a supplementary report:
In reply to the questions proposed in the ac-
eompanying papers my opinion is as follows
|. The cost of the improvements in Mill Brook
is not, in my judgment, an expenditure for
drains or sewers laid under or by virtue of the
act of 1857, chap 1O6, for which an assessment
upon real estate may be made within the terms
of that act
IL. The mayor and aldermen cannot include
in the assessment authorized by Sect. of that
act any portion Of the expenditures of wallino
IN and improving Mill Brook-stil less can thew
lncsude the whole or any portion of the cost Of
erecting or reconsTucting bridges over that
stream for the passage of streets across the
same.
The effect of including such expenditures in
the expenditure for drains and sewers Tor
which an assessment is laid upon the real es-
tate is to render illegal and void all proceedings
to collect the same.
Stetson VS.. Kempton, 10 Mass. 272;
Bibbyvs. Vernon, Is Mass. 244.
Ill. The assessment should have been laid
forthwith upon the construction of each sewer,
under the successive ordinances of the city coun-
Gil, and can only be based upon the valuation of
the estates assessed next preceding its construc-
ton, or one made for that purpose forthwith
after its construction.
Wright VS.. City of Boston, Cush. 2S7, 1913.
~. The provisions of chapter 106, acts Of 1867,
and OF general statutes, chapter 49, are such that
! do not think notice. other than notice of the
assessment, was requisite.
V. While the 4th and 9th sections of the act
are perhaps not strictly alternative provisions
because the city had power to delray a portion
only OF the expenses and OUTLAWS incurred for
the purposes set forth in the act by the issue of
scrip, and it was perhaps the intention of the
Legislature that the city should be thus enabled
TO meet that portion of those expenditures
which could not, under the provisions of the
4th section be lawfully assessed upon the abut-
ting estates, viz, the cost OF walling in and i'm
proving the channels of Mill and other brooks,
yet am of opinion that these provisions are 50
Tar alternative that if the whole expenditure
has been met by the issue of scrip, as the city
council were authorized to meet it if they saw
Mt, no tax can be laid under the lth section of
Tue act OIL 1869 Tor the purpose of raising q fund
TO meet and discharge the Indebtedness of the
city upon such scrip or bonds when they shall
hereafter become due.
Tue city had power under Gen. Stat. CHI AS
| sec. I, tol itself meet part of the expenditure
| Tor drains and sewers, and this power was so
| enlarged by the provisions of sec of ch. 1906,
acts OF 1867, that they might meet the whole ex-
| pendture, If the city council saw fit to do so,
and might raise the money for that purpose By
means oil sewer scrip, so called; but find no
provision IN sec, Of this act which authorizes
| the assessment Of real estate benefited by any
drain or sewer, for the purpose o providing a
i1nd to pay of the Indebtedness of the city, al
| though that Indebtedness may he for money
borrowed and expended in meeting the cost OF
drains and sewers which might originally have
oeeh assessed upon those persons owning real
estate upon streets in which the said drains or
sewers have been laid
,i,,, may may DC pernenly inquired in this connec.
; non what Is to he done with the money II col-
49,, ,u.ue" nom ihese assessments The drains have
e eeei pald iof' aud no provision whatever is
,o oonoy III ,io Se' for the disposition OF that
the scrip issued is due or pay,he e v my "P"n
the lapse of considerably period Of time ' "''''
| also consider that the mode adonted la, H.
city council for determining the assessmcD, va
upon the real estate by the division ~ IN, mn
property into classes was one not warranted LAY lay
law, -
Boston, May 80, 1879. B. R. Curtis.