Dowling v. Bd. of Assessors of Boston

Decision Date17 September 1929
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Case Reserved from Supreme Judicial Court, Suffolk County.

Petition by John C. L. Dowling and others against the Board of Assessors of the City of Boston. Case reserved on petition and answer. Petition dismissed.P. Nichols, of Boston, for petitioners.

F. S. Deland, Corp. Counsel, and S. Silverman, Asst. Corp. Counsel, both of Boston, for respondents.


This petition by 10 taxable inhabitants of the city of Boston is brought under G. L. c. 40, § 53, to restrain the defendants, constituting the board of assessors of Boston, from raising money by the levy of a tax alleged to be contrary to law. The case was reserved on the petition and answer for determination by this court. The pertinent facts thus disclosed are these:

At the beginning of the fiscal year 1929 (which is the same as the calendar year) there was in the treasury of the city of Boston a sum in excess of $2,500,000 not appropriated, pledged, or otherwise devoted to any specific public use. This is termed free cash. Subsequent to the beginning of 1929, the city has received a sum in excess of $5,000,000, through the collection of taxes assessed in years prior to 1929, but not previously collected, known as back taxes and hereafter so designated, and a sum in excess of $250,000 as its distributive share of the state income tax for years prior to 1929 in addition to sums previously distributed to it from that source. The city has expended the whole or the greater part of all these sums for ordinary municipal purposes and for payment on account of appropriations arising and payable with respect to the fiscal year 1929. The defendants are about to assess the annual tax on taxable real and personal property in Boston for the year 1929, and are about to include in such assessment the entire annual appropriations and other sums required to be raised by taxation, and a certain percentage of overlay, less only (1) said amount of free cash on hand on January 1, 1929; (2) estimated receipts from departmental revenues; (3) amounts estimated to be distributed to the city by the commonwealth from the excise taxes on corporations and from the state income taxes, all for the year 1929; (4) estimated amount to be received for poll taxes; and (5) an amount not in excess of the proceeds received from the personal property tax on motor vehicles as authorized by St. 1928, c. 379.

Further allegations in the petition as conclusions of law from these facts are that the city and the defendants as public officers have no legal or constitutional right to make the tax levy (1) ‘for the purpose of meeting appropriations which have already been expended and extinguishing obligations which have already been met’; (2) to raise money in order to restore to the treasury money already expended and thus create a surplus; or (3) without deducting from the total sum to be raised amounts received during the current year for back taxes and from the state income tax for previous years, and that the proposed tax levy will violate the constitutional guaranties against disproportionate and unreasonable assessmentsand against taxes for a purpose not public, article 10 of Declaration of Rights, part 2, c. 1, § 1, art. 4, and part 2, c. 2, § 1, art. 11, of the Constitution of this commonwealth, and will deprive the plaintiffs of their property without due process of law contrary to article 14 of the Amendments to the Constitution of the United States. The prayers of the petition are that the defendants be restrained from making the proposed assessment (A) without first deducting from the amount to be assessed (1) an amount equal to sums collected as back taxes since the beginning of the fiscal year, January 1, 1929; and (2) an amount equal to sums paid since January 1, 1929, by the commonwealth to the city as its share from the state income taxes for years prior to 1929; or (B) in the alternative, without first deducting from the amount to be assessed, an amount equal to sums already paid by the city with respect to appropriations, expenditures and obligations of the year 1929, from the proceeds of back taxes and from sums received from the commonwealth during 1929 as its distributive share of the state income taxes for years prior to 1929.

Question is raised as to the jurisdiction of the court to entertain the petition. There is in this commonwealth no general jurisdiction to entertain suits by taxpayers to restrain an illegal tax levy. Such jurisdiction rests entirely on statute. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 259, 147 N. E. 878, and cases there collected. The earliest statute of that nature was St. 1847, c. 37. The jurisdiction in equity thereby conferred was confined to instances where a city or town had voted to raise by taxation, or to borrow, or to pay out of its treasury money for unauthorized purposes. Carlton v. Salem, 103 Mass. 141. The jurisdiction continued to be restricted to cases of a vote by the municipality as the source of the proposed abuse of corporate power until the enactment of St. 1898, c. 490. By that statute the phraseology was changed, so as to authorize relief at the suit of not less than 10 taxable inhabitants when a municipality or ‘any of its officers or agents are about to raise or expend money or incur obligations' for illegal purposes or in an unlawful manner. This was something more than a mere verbal variation in the revision of a statute, not altering its meaning, as illustratedby Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694, and cases there collected. It was a manifest enlargement of the scope of the pre-existing statute. It made no reference to a vote of the city or town as the basis for judicial intervention. It comprehended officers and agents as well as votes of the municipality as sources of illegal conduct to be restrained. It comprised the whole gamut of illegal use of public funds and public credit, and included illegal raising of money by taxation, whether arising from the vote of the city or town or from action of its officers or agents in excess of power lawfully conferred. A wider field of relief to complaining taxpayers was created than that theretofore established. It was a new statute supplanting and changing the former in material particulars. Boston & Maine Railroad v. Billerica, 262 Mass. 439, 449, 160 N. E. 419;Hecht v. Malley, 265 U. S. 144, 156, 44 S. Ct. 462, 68 L. Ed. 949.

In these particulars the present form of the statute remains as it was fixed by the statute of 1898. The words of the statute authorize a petition, not only when the city or town, but also when any of its officers or agents, ‘are about to raise money’ for unwarranted purposes and in an unwarranted manner. The words ‘to raise money’ as applied to a municipality commonly mean to raise by taxation. Minot v. West Roxbury, 112 Mass. 1, 3,17 Am. Rep. 52;Mead v. Inhabitants of Action, 139 Mass. 341, 344, 1 N. E. 413;Board of Supervisors of Dickinson County v. Warren, 98 Mich. 144, 146, 56 N. W. 1111. Compare Wells v. Salina, 119 N. Y. 280, 288,23 N. E. 870,7 L. R. A. 759, and New York & Rosendale Cement Co. v. Davis, 173 N. Y. 235, 239,66 N. E. 9.

Assessors, like many others holding elective or appointive offices within municipalities, are often and accurately described as public officers as distinguished from agents or servants of the municipalities. They are not subject to the direction of municipalities in the performance of duties imposed on them by the statute. Walker v. Cook, 129 Mass. 577;Cook v. Springfield, 184 Mass. 247, 68 N. E. 201;Welch v. Emerson, 206 Mass. 129, 91 N. E. 1021;Cox v. Segee, 206 Mass. 380, 92 N. E. 620;Bolster v. Lawrence, 225 Mass. 387, 389, 390, 114 N. E. 722, L. R. A. 1917B, 1285, where numerous cases are reviewed. It is plain from examination of the statutes that the assessors are clothed with vital powers with respect to the raising of money by taxation. Assessors are officers elected or appointed through the instrumentality of cities and towns. In this connection assessors come within the descriptive terms of G. L. c. 40, § 53, and are officers of the city or town as therein set forth, although at the time exercising the functions of public officers and in general subject to the obligations and immunities of public officers. Colman v. Anderson, 10 Mass. 105, 118.

Essential factors in raising money by taxation in a city or town under our system of law rest upon action by assessors. Those factors are the determination by the assessors of the total amount to be assessed and included in the annual tax levy as required by law, the making of the tax list showing the valuation of property and the assessment thereon, and the commitment of such tax list with their warrant to the collector of taxes. G. L. c. 59, § 23, as amended by St. 1928, c. 379, §§ 5, 9; G. L. c. 59, § 43, as amended by St. 1928, c. 14, § 1; G. L. c. 59, § 52. A method of determining the total amount to be raised by taxation by including items which under the law ought not be so included, or by increasing that total through any unjustifiable means, would affect the amount to be raised. Errors in respect to matters of this nature, however honestly made, formerly rendered assessors liable to personal action because of their direct effect on the amount to be raised by taxation and the sum to be exacted from the individual taxpayer. Stetson v. Kempton, 13 Mass. 272, 278, 281,7 Am. Dec. 145;Stiles v. Municipal Council of City of Lowell, 233 Mass. 174, 182, 123 N. E. 615, 4 A. L. R. 1365. See now G. L. c. 59, § 87. Deviations in essential particulars by the assessors from these prescribed directions, so as to produce material differences in the amounts thus to be demanded of the taxpayer, would show that the assessors as officers of the municipality ‘are about to raise...

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