In re Opinion of the Justices

• Decision Date: 23 March 1949
• Citation: 324 Mass. 724,85 N.E.2d 222
• Parties: In re OPINION OF THE JUSTICES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

324 Mass. 724

85 N.E.2d 222

In re OPINION OF THE JUSTICES.

Supreme Judicial Court of Massachusetts.

March 23, 1949.

In the matter of the opinion of the Justices of the Supreme Judicial Court in answer to questions submitted by the Senate relating to the constitutionality of a recommendation by the Governor that authority be granted to cities and towns to exempt new residential construction from local real estate taxation for a period of five years, and relating to the constitutionality of proposed laws designed to carry out that recommendation.

Questions 1, 2 and 3 answered in the negative.To the Honorable the Senate of the Commonwealth of massachusetts:The Justices of the Supreme Judicial Court respectfully submit these answers to questions set forth in an order adopted by the Senate on March 3, 1949. A copy of the order is attached hereto.

The order recites that there are pending before the General Court the inaugural address of His Excellency the Governor, printed as Senate Document No. 1, and two petitions with accompanying bills, printed respectively as Senate Document No. 57 and House Document No. 1478. The questions relate to the constitutionality of a recommendation of the Governor that ‘The Constitution permitting,’ authority be granted to cities and towns to exempt new residential construction (the building only and not the land) from local real estate taxation for a period of five years, and to the constitutionality of the two bills, apparently designed wholly or partly to carry out that recommendation in different ways. The material portions of the bills read as follows: (Senate No. 57) ‘The value of all buildings to be used solely for residential purposes, except hotels, constructed during the period of one year on and after the effective date of this act, shall be exempt from taxation under the provisions of chapter fifty-nine of the General Laws for a period of five years after date of construction; provided, that said buildings shall continue to be used solely for residential purposes during said period.’ (House No. 1478) ‘For the next five years all housing units to be constructed for sale to veterans of World War II shall be exempted from real estate taxation for a period of five years after completion of construction excepting that the land upon which the houses are erected shall continue to be assessed at value.’

The questions are these:

‘1. Is it within the competency of the General Court, under that clause of Article IV of section one of chapter one [pt. 2] of the Constitution of Massachusetts which reads, in part, as follows:-The General Court is empowered ‘to impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said commonwealth; and also to impose and levy reasonable duties and excises, upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within the same; * * *. And while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such assessments may be made with equality, there shall be a valuation of estates within the commonwealth taken anew once in every ten years at least, and as much oftener as the general court shall order’, or under Article 10 of the Declaration of Rights which reads in part: ‘Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection’, or under any other provision of the Constitution relative to taxation or exemption from taxation, to enact a law which would authorize cities and towns to exempt new residential construction from local real estate taxation for a period of five years, substantially as recommended in said Senate Document No. 1?

‘2. Is it within the competency of the General Court to enact a law providing that the value of all buildings to be used solely for residential purposes, except hotels, constructed during the period of one year on and after the effective date of said law, shall be exempt from taxation under the provisions of chapter fifty-nine of the General Laws for a period of five years after date of construction; provided, that said buildings shall continue to be used solely for residential purposes during said period, as provided in Senate Document No. 57?

‘3. Is it within the competency of the General Court to enact into law a bill providing that for the next five years all housing units to be constructed for sale to veterans of World War II shall be exempted from real estate taxation for a period of five years after completion of construction excepting that the land upon which the houses are erected shall continue to be assessed at value, as provided in House Document No. 1478?

‘4. Would the exemption of newly constructed property, as provided in said recommendation or in either of said bills, result in the disproportionate taxation of other property in the same taxing district and thus be violative of any provision of the constitution relating to taxation and the exemption therefrom?

‘5. May the General Court provide that the property of one class of persons shall be exempt from the taxes on the same type of property owned by other classes of persons?

‘6. Would the effect of said recommendation or of either of said bills, if enacted into law, violate the constitutional mandate that, in order to be proportional the amount to be raised by taxation shall be shared by the taxpayers according to the taxable real and personal estate of each?

‘7. Would the effect of said recommendation or of either of said bills, if enacted into law, be discriminatory between particular persons and classes?

‘8. Would the effect of said recommendation or of either of said bills, if enacted into law, cause the taxes imposed on other estates to be unproportional and unreasonable?’

Article 10 of the Declaration of Rights reads in part, ‘Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection * * *.’ It has been said that this is the statement of a general principle, ‘controlling of all constitutional provisions touching taxation.’ In re Opinion of the Justices, 270 Mass. 593, 599, 170 N.E. 800, 803. But more precise provisions are contained in Part 2, c. 1, § 1, art. 4, of the Constitution, by which full power and authority are given to the General Court to ‘impose and levy proportional and reasonable assessments, rates, and taxes, upon all the inhabitants of, and persons resident, and estates lying, within the said commonwealth; and also to impose and levy, reasonable duties and excises * * *.’ This article further provides that ‘while the public charges of government, or any part thereof, shall be assessed on polls and estates, in the manner that has hitherto been practised, in order that such assessments may be made with equality, there shall be a valuation of estates within the commonwealth taken anew once in every ten years at least, and as much oftener as the general court shall order.’

The crux of the matter is to be found in the requirements that property taxes, as distinguished from ‘duties and excises', see S. S. White Dental Mfg. Co. v. Commonwealth, 212 Mass. 35, 38, 98 N.E. 1056, 1058, Ann.Cas.1913C, 805, shall be ‘proportional,’ and that, while assessments are levied on property for the public charges of government, there shall be periodic valuations, in order that such assessments ‘may be made with equality’. The requirement that property taxes be proportional was not wholly new when the Constitution was adopted. A provision of the Province Charter dated 1691 granted to the General Court or assembly ‘full power and authority’ to ‘impose and levy proportionable and reasonable assessments, rates and taxes, upon the estates and persons of all and every the proprietors and inhabitants of our said province and territory.’ The present requirement, like that of the Province Charter, is a fundamental constitutional limitation upon the power of the Legislature to impose property taxes. In President, Directors, and Company of the Portland Bank v. Apthorp, 12 Mass. 252, at pages 255-256, this court said that such taxes ‘must be proportional upon all the inhabitants of, and persons resident and estates lying within, the Commonwealth’; that ‘The exercise of this power requires an estimate or valuation of all the property in the Commonwealth; and then an assessment upon each individual, according to his proportion of that property’; and that this provision ‘seems to be intended as a contribution of the individual citizens, in proportion to the property, whether real or personal, which they are respectively worth.’ In Oliver v. Washington Mills, 11 Allen 268, at page 275, this court said, ‘The requirement of the constitution is that all taxes shall be ‘proportional.’ If any force or effect is to be given to this word, it must be regarded as a restriction on the power of the legislative department of the government, and to have been intended to prevent the exercise of an unlimited right to impose taxes.' And again, on the same page, ‘This rule of proportion was based on the obvious and just principle that the benefit which each person derives from the government has direct relation to the amount of property which he possesses and enjoys under its sanction and protection.’ And in Re Opinion of the Justices, 220 Mass. 613, at pages 618-619, 108 N.E. 570, at page 572, it was said, of art. 4, ‘These words contain the entire grant to tax. * * * The power to tax, which includes the power to levy assessments, rates and taxes, relates...