Burr v. City of Boston

• Decision Date: 16 May 1911
• Citation: 95 N.E. 208,208 Mass. 537
• Parties: BURR v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 537

95 N.E. 208

BURR v. CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

May 16, 1911

COUNSEL

Roger

F. Sturgis, for plaintiff.

T. M Babson and Karl Adams, for defendant.

OPINION

SHELDON J.

We assume, in accordance with the contention of the defendant that this bequest to the city of Boston did not vest absolutely in the city until its acceptance thereof ( Dailey v. New Haven, 60 Conn. 314, 22 A. 945, 14 L R. A. 69), and that as the city might elect either to accept or to decline the proposed benefaction, so it might make a conditional acceptance thereof, and then would be bound only by the terms of the bequest and its own conditional acceptance. But it did unconditionally accept this bequest on the terms on which it was made; and the provisions of its order of acceptance, authorizing its treasurer to receive and hold the bequest, were added merely to designate the officer who should receive it and have charge thereof. As all the debts and legacies had been paid or funds set apart for their payment when the order of acceptance was passed in March, 1909, it follows that the title to all the real estate covered by the bequest vested at least then in the city as its property, and this included the Chestnut street estate here spoken of. The case presents no question of equitable conversion. On the 1st day of May this was the property of the city, though held in trust for a public use. On that day, the board of assessors assessed a tax thereon to 'the devisees of George F. Parkman'; and the question is whether the tax was valid.

It is not claimed that the property was exempt from taxation under any of the provisions of Rev. Laws, c. 12, § 5 et seq., but the plaintiff contends that it could not be legally taxed because of the fact that the title to it was in the city itself upon the trust stated.

There is no doubt that land held by one municipal corporation within the territorial limits of another for a public or governmental use is exempt from taxation, not by reason of any specific statutory exemption, but upon what always has been assumed to be the intention of the Legislature in the statutes relating to taxation. Milford Water Co. v. Hopkinton, 192 Mass. 491, 78 N.E. 451, and cases cited. A fortiori this is so if the land is situated in the city which owns it. On the other hand such property while not actually put to any public use, but availed of for purposes of revenue merely, is taxable by the city or town in which it is situated. Essex County v. Salem, 153 Mass. 141, 26 N.E. 431. In that case the court said: 'The property of counties is held exempt from taxation when appropriated to public uses, because courts infer that it is not the intention of the Legislature to tax property so used, in the absence of any express declaration that it should be taxed. This implication is made on account of the nature of the uses to which the property is appropriated. It is not to be presumed that the Legislature intended to tax the instrumentalities of government. Worcester v. Mayor and Aldermen of Worcester, 116 Mass. 193.' And farther on the court added: 'In the absence of any express exemption of the property of counties from taxation, an exemption can be implied only when the property is actually appropriated to public uses. This is the principle which underlies all our decisions in cases analogous to the present, and we see no ground on which it ought to be extended to the property of a county actually devoted to private uses which are not incidental to the performance of public duties.'

In the case at bar the property was held by the city in trust to apply the income thereof to the maintenance and improvement of its common and parks. This is a valid public charitable trust. Bartlett, petitioner, 163 Mass. 509, 514, 40 N.E. 899. It supplies funds for a purpose which otherwise must be provided for by taxation, and so far tends to lighten the public burdens. This is strictly a public use.

We need not consider whether the city collector could maintain an action to recover this tax under Rev. Laws, c. 12, § 32. Such a suit of course must be brought against the city itself, since that alone is properly described by the language of the assessment, which can be applied to no other natural or artificial person. For such a tax the primary liability is upon the person taxed and not upon the property for which the tax is assessed (Dunham v. Lowell, 200 Mass. 468, 86 N.E. 951); and it might be a serious question whether the Legislature intended in any case to cast such primary liability upon the city or town to which that tax is to be paid. But, as we have said, that question is not raised.

This land, however, was not used directly for a public purpose, as if, for example, it were itself made into a public park, or were used as the site of a city hall or library building. It was held in trust to apply the income to the specific public charitable purpose stated in Mr. Parkman's will. The land which was decided to be taxable in Essex County v. Salem, ubi supra, was held and could be held by the county, until it should be applied to the contemplated public use and so should become exempt from taxation, strictly for the application of any income derived therefrom, like all other revenue of the county, to the general public purposes for which alone the money of the county could be spent. The case at bar differs from that case in two respects: First, that here the land sought to be taxed is within the territorial limits of the city which owns it; and secondly, that this land is held in trust to apply the income thereof to a specific public charity and not to the general public purposes of the city.

The general rule laid down by our decisions is that real estate situated in one city or town but owned and used by another for a specific public purpose is exempt from taxation, but that this exemption is limited to property which is directly appropriated to such a specific purpose. Wayland v. County Commissioners, 4 Gray, 500, in which it was held that land in Wayland owned and appropriated by the city of Boston under St. 1846, c. 167, for the sole purpose of supplying that city with water, was exempt from taxation; but it was expressly stated by the court that 'if the land was valuable for and used for purposes other and distinct from those of the aqueduct, the property so used, to the extent it was so used, would be liable to taxation.' The same doctrine is affirmed in later cases. Worcester County v. Worcester, 116 Mass. 193; Somerville v. Waltham, 170 Mass. 160, 48 N.E. 1092; Miller v. Fitchburg, 180 Mass. 32, 61 N.E. 277.

On the same principle, the real property of a public service corporation, so far as appropriated and used within authorized limitations but no farther, is exempt from taxation. Worcester v. Western Railroad, 4 Metc. 564. Many later cases are collected and both the general principle and its limitation are stated in Milford Water Co. v. Hopkinton, 192 Mass. 491, 78 N.E. 451. Hammond, J., said in that case: 'The true test is whether it [the corporation owning the land] is engaged in the administration of a public trust with power to take land for that purpose. It is the character of the use to which the property is put, and not of the party who uses it, that settles the question of exemption from taxation.'

But none of these cases, and indeed no case to which our attention has been called, except Lancy v. Boston, 186 Mass. 128, 71 N.E. 302, dealt with the exemption of land owned or appropriated for a public use by the city or town in which the land was located. It was held in that case that land in which an easement had been taken by right of eminent domain either for a highway or for railroad purposes was not taxable to the owner of the fee. The general question of the right or duty of a city to tax land owned by itself within its own limits, though not appropriated or used for a public purpose, was not considered. Nor have we found any case which considers the manifest distinction between such land held upon an express trust for a specific public charitable use to which alone its income can be applied, and land which is held merely in the general ownership of the city and of which both the corpus and the income may be applied to its general purposes.

If taxes can be lawfully assessed by cities and towns upon their own lands, then it is the duty of the assessors to lay such assessments and of the collectors to enforce the payment thereof. These officers are strictly public officers and in no sense the agents or representatives of the...