Cabot v. Assessors of Boston

• Decision Date: 09 November 1956
• Citation: 138 N.E.2d 618,335 Mass. 53
• Parties: Samuel CABOT et al. v. ASSESSORS OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 618

138 N.E.2d 618

335 Mass. 53

Samuel CABOT et al. v. ASSESSORS OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1956.

Decided Nov. 9, 1956.

Richard Wait, Boston, Raymond H. Young, Boston, with him, for petitioners.

William H. Kerr, Boston, William L. Baxter, Corp. Counsel, Boston, with him, for respondents City of Boston and others.

James D. St. Clair, Boston, Norman B. Asher, Boston, with him, for respondent Boston Common Garage, Inc.

Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ. CUTTER, Justice.

Ten taxpayers of Boston and three garage corporations, doing business in Boston and paying taxes on their property there, have brought this petition under G.L. (Ter.Ed.) c. 40, § 53, purporting also to seek relief under G.L. (Ter.Ed.) c. 231A, § 6, against the city, its three assessors and Boston Common Garage, Inc., a private corporation (hereinafter called Garage, Inc.). Garage, Inc., is the lessee of a portion of Boston Common, to be used for garage purposes, under a lease made pursuant to St.1946, c. 294, as amended by St.1948, c. 654, St.1951, c. 355, and St.1955, c. 529.

The petition seeks to restrain the assessors from assessing taxes on property in Boston for the year 1956 without likewise assessing taxes for that year upon the portion of Boston Common leased to Garage, Inc. It also seeks declarations (1) that the city cannot constitutionally raise money by taxing property within the city unless taxes are assessed to Garage, Inc, with respect to the leased portion of Boston Common, and (2) that, notwithstanding an express exemption found in St.1946, c. 294, § 2A, inserted by St.1948, c. 654, § 1, the assessors are under a duty to assess a tax to Garage, Inc., with respect to the leased premises.

Demurrers to the petition, filed by the city, the assessors and Garage, Inc., were sustained and a final decree dismissing the petition was entitled. Appeals were taken by the petitioners. The facts set forth below are alleged in the petition.

Statutes 1946, c. 294, § 2, authorized the city 'to enter into a contract with a private corporation for the construction and operation, at the expense of the corporation and without cost to the city, of a garage for motor vehicles under Boston Common * * * together with all necessary and convenient approaches above and below ground, * * * and of an underground passageway from said garage with entrance and exit at or near the corner of West and Tremont streets * * * and to grant a lease for such purposes to such corporation for a term of not exceeding forty years * * *.' The city by § 2 is also authorized to permit construction of a two-lane traffic tunnel under the Public Garden, Charles Street and the Common from Commonwealth Avenue at or near Arlington Street to the proposed garage. The lessee, by the statute, is to pay a rental equivalent to not less than two per cent of its gross receipts.

The city owns Boston Common in fee. Lowell v. City of Boston, 322 Mass. 709, 741, 79 N.E.2d 713, appeal dismissed sub nomine Pierce v. City of Boston, 335 U.S. 849, 69 S.Ct. 84, 93 L.Ed. 398. By a lease dated November 3, 1955, it leased to Garage, Inc., for business purposes, for a term of forty years beginning on that date, so much of Boston Common as was to be actually occupied by a garage under a part of Boston Common, including the approaches, an underground passageway and certain appurtenances, all as set out in attached plans. Garage, Inc., agreed to build the garage in accordance with the plans and was given permission to construct the approaches from Commonwealth Avenue, mentioned above. The lessee, by the lease, was required to pay all taxes validly assessed as of any date during the term 'against the demised premises or against the lessee with respect to the demised premises.'

The corporate petitioners ¹ each own in fee, and operate, a garage within 2,000 feet of the entrance of the projected garage and will be subjected to competition by Garage, Inc. Statutes 1946, c. 294, does not authorize the city to control rates to be charged or otherwise to regulate the operation of the proposed garage and the city intends to refrain from such control or regulation.

Statutes 1948, c. 654, § 1, inserted in St.1946, c. 294, a new section § 2A, reading, 'No private corporation mentioned herein shall be assessed any tax upon any real estate, garage, underground passageway or traffic tunnel of which it is lessee hereunder or upon any structures or facilities constructed under any construction contract or lease while such lease is in force, the provisions of any general or special law to the contrary notwithstanding.'

The respondents other than Garage, Inc., contend that § 2A merely expressly confirms an exemption of city owned land, leased for public purposes, which would exist even without the enactment of § 2A and that, in any event, § 2A is valid. The petitioners assert that the operation of the proposed garage is in the nature of a private business and does not constitute a public use or a public purpose. Accordingly, they contend that § 2A grants a tax exemption, which (1) violates the provision relating to 'proportional and reasonable * * * taxes' of Part II, c. 1, § 1, art. 4, of the Constitution of Massachusetts; and (2) denies the petitioners and others similarly situated the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. ²

The assessors do not propose to make any assessment in 1956 to Garage, Inc., with respect to the leased property. They do, however, propose to assess the individual and corporate petitioners 1956 taxes with respect to their taxable property in Boston.

The petitioners assert that an actual controversy exists between the petitioners and the several respondents with respect to the duties of the latter under § 2A and with respect to the validity of § 2A.

No procedural questions are raised as grounds of demurrer. A ten taxpayers' suit may be brought, under G.L. (Ter.Ed.) c. 40, § 53, to restrain a tax levy, alleged to be generally invalid. Dowling v. Board of Assessors of City of Boston, 268 Mass. 480, 483-486, 168 N.E. 73. See Newhall v. Assessors of Brookline, 329 Mass. 100, 102, 106 N.E.2d 432. However, in addition to seeking injunctive relief under G.L. (Ter.Ed.) c. 40, § 53, this petition also prays for declaratory relief under G.L. (Ter.Ed.) c. 231A, § 6, inserted by St.1945, c. 582, § 1. We think, however, that the petitioners have no standing entitling them to obtain declaratory relief independently and apart from their statutory standing to seek injunctive relief under G.L. (Ter.Ed.) c. 40, § 53. See Povey v. School Committee of Medford, 333 Mass. 70, 71-72, 127 N.E.2d 925; Berry v. City of Quincy, 334 Mass. ----, 134 N.E.2d 135. Any declaratory relief granted under G.L. (Ter.Ed.) c. 231A, § 6, in this proceeding is not a matter of right and is wholly dependent upon whatever right to injunctive relief may exist under G.L. (Ter.Ed.) c. 40, § 53. Since the petition does not state an independent basis which, standing alone, permits declaratory relief to these petitioners we need consider, in passing upon the issues raised by the demurrers, only the question whether a case for injunctive relief under G.L. (Ter.Ed.) c. 40, § 53, is stated by the petition. If no basis for such injunctive relief is stated in the petition, there was no error in sustaining the demurrers. However, a decision in the ten taxpayers' proceeding necessarily involves a determination of the issues on which a binding determination is sought, so, as a matter of discretion and to avoid possible future litigation, our decision affords the determination sought by the petitioners.

The petition alleges that the 'operation of the said garage is in the nature of a private business, and does not constitute a public use or a public purpose' and that the lease to Garage, Inc., was made 'for business purposes.' These allegations we view as conclusions not admitted by the demurrers. United Shoe Machinery Corp. v. Gale Shoe Mfg. Co., 314 Mass. 142, 145, 160, 49 N.E.2d 913; Burnes v. Metropolitan District Commission, 325 Mass. 731, 733-734, 92 N.E.2d 381. We have considered them as asserting, in substance, merely that a lease of the type described in the petition was made for the purposes contemplated by the authorizing statute, regarding the petitioners' characterization of these purposes as a conclusion of law.

The lease to Garage, Inc., however, plainly does have a 'double aspect.' See Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288, 292, 23 N.E.2d 665. From the standpoint of Garage, Inc., the lease is for its business use, in an attempt to make a profit. The petitioners, accordingly, contend that the leased property should be taxed because it is to be used by a private corporation for its own profit. However, from the standpoint of the city, the primary and only objective of the lease is to accomplish the public purpose set out in the legislation, namely, the abatement of the public nuisance, consisting of congestion of the public ways of Boston caused by the great number of motor vehicles. See St.1946, c. 294, § 1. The effect of the legislative declaration of this purpose has been fully discussed in Lowell v. City of Boston, 322 Mass. 709, 735-738, 79 N.E.2d 713. It was there decided that the conditions which gave rise to the 1946 statute and its public purpose justified the scheme adopted by the Legislature to accomplish that purpose. Apart from this primary purpose, it is plain that the lease would not have been undertaken. As was said in Lowell v. City of Boston, 322 Mass. at page 737, 79 N.E.2d at page 729, the 'garage is an incident in a legislative plan designed to abate a public nuisance * * * a method employed to accomplish the primary purpose of the statute.'

The question of the validity of the tax exemption granted...