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1; French v. French, 126 Mass. 360. Interest cannot be stricken out in this proceeding, whether properly included or not. The record of the expenditures, which included interest, made by the county commissioners, was in the nature of an adjudication, binding upon the special commissioners and parties, and could not have been reviewed and corrected by this court except upon certiorari. It was a record of a determination of a tribunal, by its clerk, to remain in his custody for all the purposes of a record. Pub. St. Mass. c. 159, SS 6, 16; Id. c. 22, § 27; Gen. St.c. 121, $$ 6, 13; Id. c. 17, § 27; Rich v. Lancaster R. Co., 114 Mass. 514; Young v. Yarmouth, supra; Ham v. Salem, 100 Mass. 351; Snow v. Fitchburg, 136 Mass. 179, 182; Gilkey v.Watertown, 141 Mass. 317, 319; S. C. 5 N. E. Rep. 152; Lynch v. Crosby, 134 Mass. 313.
By the statute it was too late to appeal after April, 1885, before which the report of commissioners was filed, and due notice thereof given, and at which only Northampton appealed. The right of appeal was very limited. Gill v. Scituate, 100 Mass. 200. The ruling as to Aldrich was correct. The special commissioners have determined, as a fact, that Aldrich and others, as trustees, are parties benefited by the work. Their conclusion was within the scope of their authority and duty, and the court, in similar cases, have declined to re· vise or disturb the award. Northampton B. Case, ubi supra; Boston &
W. R. Corp. v. Western R. Corp., 14 Gray, 253, 258; Wrentham v. Norfolk, 114 Mass. 552, 561; In re County Com’rs, 140 Mass. 181; S. C. 5 N. E. Rep. 490.
T. G. Spaulding, for city of Northampton.
It is submitted that, by the provisions of said chapter, the appeal of Northampton opens for the consideration and determination of the jury the two questions which the board of commissioners have determined. In re Sunderland Bridge Case, 122 Mass. 460. The appeal of any party brings the whole question of apportionment before the jury. Acts 1871, c. 177, § 2; Acts 1875, c. 175, § 2. If the appeal is sustained, the only question for the jury would be one of proportion of the expense. The jury should have been instructed that there was such laches in law, in fact, that no portion of the actual expenditure could be recovered. The delay of the county commissioners, for nearly eight years, in enforcing their rights, brings the case, by analogy, within the statute of limitations. Fuller v. Hovey, 2 Allen, 325, 326; Story, Eq. Jur. 1520, note 2; Id. § 1521; Evans v. Bacon, 99 Mass. 215; 1 Pom. Eq. Jur. 88 418, 419; Tash v. Adams, 10 Cush. 252; Fuller v. Melrose, 1 Allen, 166, 167; New Albany v. Burke, 11 Wall. 107. If the petition, in 1884, was treated as a demand, the demand was made too late. Codman v. Rogers, 10 Pick. 119; Boston & M. Ry. v. Bartlett, 10 Gray, 385. Interest cannot be recovered. Acts 1875, c. 200, do not give it. Haverhill Bridge Propr's v. County Com’rs, 103 Mass. 128, 129.
J. C. Hammond, for town of Hadley.
It is submitted that “the cost of the work,” or “the actual expenditure,' contemplated by St. 1875, c. 200, cannot include interest. Taxes are not contracts. Taxes are debts. Taxes never draw interest, except by special statute authority. Cooley, Tax'n, 13, and note 1, cases cited; Pub. St. c. 11, $ 67. No statute authority exists in this state to include in the tax interest from the time liability to taxation began. See Gen. St. c. 43, S$ 49, 50; Pub. St. c. 49, $$ 60, 61; Lowell v. County Com’rs of Middlesex, 3 Allen, 550; Jones v. Aldermen, 104 Mass. 461, 465; Blackie v. Hudson, 117 Mass. 181; Cochran v. Guild, 106 Mass. 29; Norris v. Massachusetts Mut. Life Ins. Co., 131 Mass. 294. The appeal of Northampton ought not to affect the other towns. Laches in law and laches in fact should prevent the recovery of any portion of the sum expended under said statute. It would seem that the words of the statute are mandatory, and eight years' delay should deprive the county of any remedy over. Cooley, Tax'n, 216–220; Eames v.Johnson, 4 Allen, 382, questions Pond v. Negus, 3 Mass. 230, and Williams v. School
district, 21. Pick. 75. Power to assess betterment taxes, or, as they are otherwise called, taxation by special assessment, is to be construed with strictness. Cooley, Tax'n, 418.
E. Parsons, for S. N. Aldrich and others.
There is a fatal variance between the verdict of the jury and the determination and decree of the special commissioners. Whether the verdict of the jury be considered as an assessment against real property or against Aldrich, Perkins, and Woods, as trustees, it is immaterial, as being in variance with the finding of the commissioners, and creates a new party. No party can be assessed for the expenditure for the work done under St. 1875, c. 200, except such as were benefited when the work was completed, to-wit, previous to September 1, 1876. Under St. 1883, c. 64, § 4, said Aldrich et al. cannot be made liable.
Interest. No assessment can be made for interest until the account rendered, adjudicated, and payable. Hendrick v. West Springfield, 107 Mass. 541; Brainerd v. Champlain Transp. Co., 29 Vt. 154. The petitioners are estopped to claim by reason of their laches. Forward v. Hamp. & Hamp. Canal Co., 22 Pick. 462; Codman v. Rogers, 10 Pick. 112, 118, 119.
MORTON, C. J. The object of the statute of 1875, c. 200, was to secure the protection of the banks of the Connecticut river, a great public improvement, in which the county of Hampshire and many towns, corporations, and individuals were interested. The scheme of the statute is that the work shall be done and the expenses borne, in the first instance, by the county of Hampshire. Upon the completion of the work, the county commissioners are required to make a record of their doings, and of the amount expended or cost; and thereupon three special commissioners are to be appointed by this court “to determine and decree what towns, persons, and corporations, including said county, are benefited by said work, and what proportion of the cost of said work” shall be paid severally by them. The third section provides that “any party affected by the decree, and dissatisfied with the determination of the commissioners, may appeal to a jury from the award of the commission
In the case before us, commissioners were duly appointed, who have made their decree, and the case was heard, before a single justice and a jury, upon the several appeals taken by the parties interested. The presiding justice has reported to the full court several questions of law which arose at the trial.
1. The city of Northampton claimed that its appeal opened to the consideration of the jury the entire question of what parties are benefited, and the proportion to be assessed to each. We think this claim is based upon a broader construction of the statute than it will reasonably bear. The statute evidently contemplates that there may be many parties affected by the decree, and that each party, severally and independently, should have a right of appeal. There is no reason why an appeal by Northampton should draw in question the rights of other towns, and compel them to bear further litigation. The question whether Hadley is liable, and to what amount, concerns Hadley alone, and Northampton has no interest in it. If an appeal by one party opens the entire case, it would open it not only as to the rights and proportions of all the other parties to the record, but would involve the inquiry whether other towns and parties are not benefited; and it would present a case of such complication and difficulty that it could not be satisfactorily tried before a jury. We do not think the legislature intended this. It intended that "any party affected by the decree” might appeal independently of the other parties, and might retry its case to the extent to which it is affected; and such appeal will open the case only so far as is necessary for determining the rights of the appealing party.
The ruling of the court that the appeal by Northampton opened the question of the liability of the city, and the amount of it, gave to the city all that it is entitled to; as it permitted it to prove, if it could, that it was not benefited, and that the amount assessed to. it was too great. The legislature could legally grant such limited right of appeal as it saw fit. Sunderland. Bridge Case, 122 Mass. 459; Northampton Bridge Case, 116 Mass. 443. We cannot think that it was the intention of the legislature that, on appeal by any one party, a jury should revise the whole proceedings of the commissioners, and should try the whole case de novo. It would be impracticable to frame issues and to try such a case intelligently before a jury. On the contrary, we think the intention was to give to each party assessed by the award of the commissioners the right to appeal separately, and to try only the questions of its liability, and the amount thereof.
The county is the only party liable to be injured by this construction, since if, upon appeal, any party procures a verdict more favorable to itself than the award of the commissioners, the difference would fall upon the county; but we think this was one of the risks imposed upon the county when the legislature required it to pay the expenses of the work, and to risk its reimbursement from the towns and corporations adjudged to be benefited by it.
2. All the appealing parties claimed that there was such laches, in law and in fact, that no portion of the actual expenditure could be recovered. The court properly ruled that there was no laches which would prevent an assessment against the parties benefited. The doctrine of the loss of a party's rights by his laches in enforcing them has no application to the case. The statute does not fix any time within which the county commissioners must complete the work, and bring their petition for an assessment of the expenses. This is left to their discretion. Fairbanks v. Mayor, etc., of Fitchburg, 132 Mass. 42.
Besides this, the county commissioners do not act, in performing their duties under this act, as the agent of the county. They act as a board of public officers, to whom the legislature saw fit to intrust this duty, and they represent and act for each of the appellants as much as for the county. If there has been unreasonable delay on their part, there is no reason why the county, which is as much injured by it as any other party, should bear the burden of the other parties interested.
3. The court rightly ruled that interest upon the sums expended by, the county could be included as a part of the expenditure to be assessed. The statute clearly contemplates that the whole cost of the work shall be divided between the county, towns, and corporations benefited. Under it, money must be expended at once, and from time to time, and a long time must elapse before the county could. obtain reimbursement. Interest upon the money thus expended is fairly an incident and part of the cost. There is no good reason why this part of the cost should be borne exclusively by the county. It advanced the money, not for its own use exclusively, but for the use and benefit of all parties interested in the work, and it is just that it should be reimbursed for this part of the cost. Haverhill Bridge v. County Com’rs, 103 Mass. 120.
4. The defendants Aldrich, Perkins, and Woods claimed, as matter of law., that they were not liable for any portion of the expenditures. We are of opinion that the presiding judge rightly refused to give this ruling. It is admitted that the work done is a benefit to the structures which were formerly the property of the Massachusetts Central Railroad Company, and were, at the time of the adjudication and decree of the commissioners, the property of the three defendants, as trustees. These trustees do not hold the property strictly as private purchasers. They hold it under authority of and subject to the trusts declared in the statute of 1883, c. 84. It was the intent of this statute that while the property remained in the hands of the trustees, and after the organization of the new company, they should be subject to the
duties and liabilities of the Massachusetts Central Railroad Company. That company was under an inchoate liability to be assessed for a portion of the expenses of the improvement of the river, and the trustees continued subject to this liability. We think the special commissioners rightly ruled that the trustees, being the owners of the property of the railroad at the time of their award, were liable for a portion of the expenses, within the meaning of the statute of 1875. These defendants object to the ruling of the court that the property held by them as trustees is liable for a proportion of the expense, though they are not personally liable, upon the ground that this ruling, and the verdict of the jury under it, departed from the award of the commissioners, and introduced a new party. The ruling is substantially that the defendants are liable as trustees, and the verdict of the jury is to the same effect. The whole record of the special commissioners shows that they are throughout dealing with Aldrich, Perkins, and Woods as trustees, under the statute of 1883, and their award that these three defendants should pay five-thirtieths of the expense clearly means these defendants in their capacity of trustees. There is no variance between this award and the verdict, and the ruling of the court did not introduce any new party.
5. The county claimed the special commissioners and the court are bound to take the report of the county commissioners as conclusive, and therefore that the sum found by them, $14,309.12, with interest to the date of the verdict, should be divided among the several parties according to the proportions established by the special commissioners. The court ruled that the sum to be assessed was $9,221.15, being the amount of the actual expenditures, with simple interest added to the date of the verdict. The report of the county commissioners shows that the total expenditures to September 1, 1876, was the said sum of $9,221.15. The other charges, which increase the amount of their account to $14,309.12, are for interest. The claim of the county results in giving compound interest, which we think ought not to be allowed. It is true that the report of the county commissioners as to their expenditures is conclusive upon all parties, and that this court cannot revise it, so far as to inquire into the amount or propriety of the expenditures. But the question of what interest should be allowed is a question of law, which appears upon the face of the report. No harm is done to any one by considering this question upon the record, as it now stands, instead of resorting to an auxiliary writ of certiorari, which would raise precisely the same question.
Upon the whole case, we are of opinion that the rulings at the trial were right, and that judgment should be entered according to the verdict of the jury. Judgment accordingly.
(143 Mass. 418)
COMMONWEALTH V. KENNESON.
(Supreme Judicial Court of Massachusetts. Suffolk. January 10, 1887.) 1. ADULTERATION-MILK"Not or GOOD STANDARD QUALITY”-Sr. Mass. 1886, Ch. 318,
A complaint under St. Mass. 1886, c. 318, & 2, making it unlawful to have in one's possession milk, “not of good standard quality,” with intent to sell the same, and establishing a different standard for the months of May and June, need not negative the exception of the months of May and June, where it alleges the unlawful
possession on the first day of July. 8. SAME-ST. MASS. 1885, Ch. 352, 8 6–PUB. Sr. Ch. 57, & 9-St. Mass. 1886, Ch. 318, % 2.
St. 1883, c. 352, $ 6, amending Pub. St. c. 57, 89, so as to read as follows,” etc., since the amendment covers the whole subject, impliedly repeals the former statute, but St. 1886, c. 318, § 2, purporting to amend Pub. St. c. 57, 89, is not a nullity
as an amendment of a repealed statute. It stands like an independent enactment. 3. SAME-Sr. Ass. 1884, Ch. 310, % 3, REPEALED BY ST. MAss. 1886, Ch. 318, % 1.
St. 1884, c. 310, § 3, relating to taking specimens of milk, is inipliedly repealed by St. 1886, c. 318, 1, so that it is only necessary to follow the provisions of the latter statuie as to the delivery of a sample to the defendant.
Complaint to the municipal court of the South Boston district, under section 2, c. 318, of the Acts of 1886, alleging that, on the first day of July, 1886, the defendant “did have in his possession a certain quantity, that is to say, one pint, of milk, not of good standard quality; that is to say, milk containing less than thirteen per cent. of milk solids, with intent," etc., “to sell the same.” Trial in the superior court before STAPLES, J., where the jury returned a verdict of guilty, and the defendant alleged exceptions. The facts are stated in the opinion.
James A McGough, for defendant.
The motion to quash, though not made in the municipal court, should have been allowed—First, because the complaint is defective, both in substance and form. The exception as to the 12 per cent. standard, contained in the same clause of the same section (chapter 318, § 2, Acts Mass. 1886) upon which this complaint is founded, is a descriptive part of the offense, and ought to have been negatived. 1 Starkie, Crim. Pl. 171 et seq., 219; 5 Bish. Crim. Proc. 9 639, and note; Com. V. Maxwell, 2 Pick. 139; Com. v. Hart, 11 Cush. 130. Second, because the law upon which this complaint is founded (chapter 318, § 2, Acts Mass. 1886) is inoperative and void, as the law it purports to amend or repeal (chapter 57, § 9, Pub. St. Mass.) was itself repealed by substitution, (chapter 352, § 6, Acts Mass. 1885.) A repealed statute cannot be the subject of amendment or repeal. And said act of 1886, being void, this complaint describes no offense under existing law, (chapter 352, 36, Acts Mass. 1885.) Sullivan v. Adams, 3 Gray, 476; Bartlett v.King, 12 Mass. 537; Com. v. Keiliher, 12 Allen, 480; Ashley's Case, 4 Pick. 21; Leighton v. Walker, 9 N. H. 59; Wakefield v. Phelps, 37 N. H. 295. Evidence of the official analysis was inadmissible. The reserving a portion of the sample “before commencing the analysis," as provided in chapter 310, § 4, Acts Mass. 1884, is a condition precedent to the procuring, recording, or using of the evidence by analysis. See like provisions in other statutes. Chapter 318, § 3, Acts Mass. 1886. It is the time of production, and not the time of the subsequent possession or prosecution, that fixes the standard of the milk. The defendant's possession of the same milk on July 1st did not change the standard; and that it was not up to the 12 per cent. standard is immaterial in this case, because such is not the charge alleged. Chapter 318, § 2, Acts Mass. 1886.
. Harvey N. Shepard, Asst. Atty. Gen., for the Commonwealth.
The rulings of the court were correct. The motion to quash was filed too late. The evidence of the analysis was properly admitted. It is very evident that the object of the statute (Acts 1884, c. 310, § 4) is to give a defendant a portion of a sample to be tested, that there shall be no chance for a prejudicial mistake, or that such a mistake may be discovered. The defendant claims no such mistake.
mistake. The meaning of the statute is that all prosecutions for sales in the months of May and June shall be based upon the special standard made for those months. The fact that defendant had the same milk on another and prior day, when a different standard would be applicable, with the same intent, cannot be material in the present prosecution.
FIELD, J. The offense of selling, or of having in one's possession with intent to sell, milk “not of good standard quality” was created by St. 1886, c. 318, § 2. The quality required by the statute for the months of May and June is different from that for the rest of the year; but this distinction relates to the time when the milk is sold, or kept in possession with intent to sell, and not to the time when the milk is obtained from the cow. As this complaint alleges that, on the first day of July, the defendant had in his possession “one pint of milk not of good standard quality, that is to say, milk containing less than thirteen per cent. of milk solids, with intent then and there unlawfully to sell the same within the commonwealth,” it charges an offense within the statute. It is not necessary in the complaint to negative the ex