This is an action on the covenant against encumbrances in a deed conveying land on Burbank Street in Boston. A few days before the date of the deed the street commissioners had ordered that the so called street should be , laid out as a highway under St. 1891, c. 323, as amended by St. 1892, c. 418. After the date of the deed the street commissioners determined the assessable cost which subsequently the plaintiff paid. It is not denied that the lien for this cost was an encumbrance (Blackie v. Hudson, 117 Mass. 181,) if the statute under which it was assessed is constitutional, and the case " comes here on exceptions to a refusal to rule that the act is void. No other question is argued.
By St. 1892, c. 418, § 8, the assessable cost of the work is made a lien upon the land without personal liability, and the amount for which each parcel shall be liable shall be determined by the street commissioners “in accordance with the proportions in which said board shall determine that the said parcels of land are increased in value by the aforesaid order and the carrying out thereof.” It is argued that, although the cost is to be divided among the estates liable in proportion to the benefit, the cost maybe greater than the benefit, and that therefore an attempt to charge it all unconditionally to the benefited estates is void under recent decisions. Dexter v. Boston, 176 Mass. 247, 251.
We are of opinion that the argument is sound, and that the *492statute cannot be sustained. At first we had the impression that the required proportion to the increase in value could be construed to save it, as the word “proportional” was deemed sufficient to save St. 1899, c. 450, § 3. Hall v. Street Commissioners, 177 Mass. 434. But the statute of 1899 simply fixed a maximum of not more than four dollars per linear foot as the sum which was to be charged in proportion to the benefit received. Under the statute before us the whole assessable cost is to be paid. by the adjoining estates. “ The said assessable cost of the work done under said order shall be assessed upon the several parcels of land,” St. 1892, c. 418, § 8, or as it read before amendment, “ The said assessable cost . . . shall be repaid with interest to the city, by the owners of the several parcels of land.” St. 1891, c. 323, § 15. There is no escape from the construction that the whole assessable cost is to be paid. What this cost is is defined in St. 1892, c. 418, § 7. It includes the expenses of taking land and all the main items to be expected. Plainly it may be greater than the benefit to the adjoining estates. The proportion in which the board shall determine that the parcel of land is increased in value determines the amount for which each parcel is to be liable, it is true, but as the total cost is to be divided among the several parcels, there is no chance to read the reference to'this proportion as implying that the charges shall not be more than the benefit. The only effect which it can have is to determine the distribution of the tax among the different parcels which collectively must pay the whole. We are unable to construe the statute in such a way as to make it consistent with the Constitution.
Exceptions sustained.