Assessors of Haverhill v. New England Tel. & Tel. Co.

• Decision Date: 07 March 1955
• Citation: 332 Mass. 357,124 N.E.2d 917
• Parties: ASSESSORS OF HAVERHILL v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 917

124 N.E.2d 917

332 Mass. 357

ASSESSORS OF HAVERHILL v. NEW ENGLAND TELEPHONE & TELEGRAPH COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 3, 1954.

Decided March 7, 1955.

Frederick H. Magison, Special Counsel, Salvatore Faraci, City Sol., Haverhill, for Board of Assessors.

Leland Powers, Leon F. Sargent, Roger Clapp, Boston, for New England Tel. & Tel. Co.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

QUA, Chief Justice.

The assessors appeal from a decision of the Appellate Tax Board abating a tax assessed for the year 1951 in the sum of $49,639.44 on the machinery, poles, wires and underground conduits, wires and pipes of the company located in Haverhill. The board ruled that the assessment was invalid.

At the time of the assessment it was provided by G.L. (Ter.Ed.) c. 59, § 39, as appearing in St.1933, c. 254, § 36, and as amended by St.1939, c. 451, § 22, ¹ that local assessors should assess the machinery, poles, wires and underground conduits, wires and pipes of telephone and telegraph companies at a value determined by the commissioner of corporations and taxation and certified by him to the assessors, or in case of appeal by the assessors from the commissioner's valuation, at the value determined by the Appellate Tax Board. Instead of complying with this section, the assessors used a valuation fixed by themselves which was $550,000 greater than that certified to them by the commissioner. They now contend not only that § 39 was unconstitutional but also that § 41, as appearing in St.1933, c. 254, § 37, ² which provided for returns by the companies to the commissioner to enable him to make his valuations, and § 73, as appearing in St.1933, c. 254, § 44, ³ which provided that a company aggrieved by the taxes assessed on it might apply to the commissioner for an abatement, were likewise unconstitutional.

These sections, or some of them, have been the subject of a series of decisions in recent years at the instance of the assessors of Springfield and of Haverhill. Commissioner of Corporations & Taxation v. Assessors of Springfield, 329 Mass. 419, 108 N.E.2d 670; Assessors of Springfield v. New England Telephone & Telegraph Co., 330 Mass. 198, 112 N.E.2d 260; Commissioner of Corporations & Taxation v. Assessors of Sprinfield, 330 Mass. 433, 114 N.E.2d 550; Commissioner of Corporations & Taxation v. Assessors of Haverhill, 330 Mass. 553, 116 N.E.2d 151; State Tax Commission v. Assessors of Haverhill, 331 Mass. 306, 118 N.E.2d 745; State Tax Commission v. Assessors of Springfield, 331 Mass. 677, 122 N.E.2d 372; State Tax Commission v. Assessors of Haverhill, 331 Mass. 685, 122 N.E.2d 377. In the case of Commissioner of Corporations & Taxation v. Assessors of Haverhill, 330 Mass. 553, at page 555, 116 N.E.2d 151, we said that the assessors' attack upon the constitutionality of § 39 was 'without merit'. Inasmuch, however, as the present attack is not confined to § 39 and appears to be pressed upon grounds different from those advanced in the case last cited we consider the arguments here addressed to us.

1. There is no violation of the requirement of Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth that assessments, rates and taxes be proportional and reasonable. The value to be determined by the commissioner ⁴ under § 39 is the fair cash value of the property. This is implicit in § 39 and is made explicit by the reference to 'fair cash value' in § 73. The basis of valuation is therefore the same as that upon which the assessors must act under G.L. (Ter.Ed.) c. 59, § 38, in determining the value of other property in the city. And of course the tax rate must be the same as that applied to other property. § 39. The only possible ground for the contention that the tax assessed upon the company under the statutes in question is not proportional and reasonable is that the value may be finally determined by the commissioner ⁵ upon application for abatement late Tax Board. But taxes are not rendered disproportionate or unreasonable merely because the values of different types of property may under the law be fixed by different officers whose judgments may differ as to value and as to the best method of determining it. There is no requirement that all valuations for tax purposes be made by a single officer or a single board. Cummings v. Merchants' National Bank, 101 U.S. 153, 160-161, 25 L.Ed. 903; Nashville, Chattanooga & St. Louis R. v. Browning, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254. See People of State of New York ex rel. N. Y. Clearing House Building Co. v. Barker, 179 U.S. 279, 21 S.Ct. 121, 45 L.Ed. 190. There is nothing to show that there is in favor of telephone and telegraph companies 'an intentional discrimination and one adopted as a practice.' Chicago Great Western Railway v. Kendall, 266 U.S. 94, 99, 45 S.Ct. 55, 57, 69 L.Ed. 183, even though the commissioner and the assessors may have entertained different views as to the best method of ascertaining value.

2. There is no denial of due process or of equal protection of the laws in the provision of § 73 granting an appeal to a company aggrieved by the commissioner's ⁶ refusal of an abatement without granting any corresponding appeal to the assessors. Assessors are strictly public officers. Burr v. City of Boston, 208 Mass. 537, 541, 95 N.E. 208, 34 L.R.A.,N.S., 143; Hobart v. Commissioner of Corporations & Taxation, 311 Mass. 341, 344, 41 N.E.2d 38. It is for the Legislature to say what rights shall be given to them in their official capacities and waht rights denied.

3. There is no denial of equal protection of the laws in providing for the property of telephone and telegraph companies described in § 39 a method of assessment different from that provided for somewhat similar property of other woners, including such other public service companies as electric light and power companies, gas companies, railroads, and street railways. Sufficient ground for valid classification is found in the differing nature of the services rendered and of the means employed in rendering them. In recognition of inherent differences these types of public services have been from the beginning governed by differing statutory provisions. The reasons for adoption of the present method of valuing the machinery, poles, wires, conduits and pipes of telephone and telegraph companies sufficiently appear in Assessors of Springfield v. New England Telephone & Telegraph Co., 330 Mass. 198, 201-203, 112 N.E.2d 260. If these reasons may also have some application to some of the other types of public service companies just mentioned, the Legislature may have felt that they apply in less degree than to telephone and telegraph companies, which we may now be certain extend into every city and town in the Commonwealth. The ramifications of particular gas and electric companies and even of railways may be less extensive. It may be that no acute problem has arisen in connection with these companies. These are matters for the Legislature to consider. Old Colony Railroad v. Assessors of Boston, 309 Mass. 439, 446-450, 35 N.E.2d 246; McQuade v. New York Central Railroad, 320 Mass. 35, 38-39, 68 N.E.2d 185; Western Union Telegraph Co. v. State of Indiana, 165 U.S. 304, 17 S.Ct. 345, 41 L.Ed. 725; Citizens' Telephone Co. of Grand Rapids v. Fuller, 229 U.S. 322, 33 S.Ct. 833, 57 L.Ed. 1206; New York, Philadelphia & Norfolk Telegraph Co. v. Dolan, 265 U.S. 96, 44 S.Ct. 450, 68 L.Ed. 916. See Kentucky Railroad Tax Cases, 115 U.S. 321, 336-339, 6 S.Ct. 57, 29 L.Ed. 414; Michigan Central Railroad v. Powers, 201 U.S. 245, 26 S.Ct. 459, 50 L.Ed. 744; Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S.Ct. 431, 46 L.Ed. 679; Southwestern Oil Co. v. State of Texas, 217 U.S. 114, 30 S.Ct. 496, 54 L.Ed. 688; Nashville, Chattanooga & St. Louis Railway v. Browning, 310 U.S. 362, 368, 60 S.Ct. 968, 84 L.Ed. 1254. Compare Vigeant v. Postal Telegraph Cable Co., 260 Mass. 335, 157 N.E. 651, 53 A.L.R. 867.

4. There is no...