Jenney v. Assessors of Mattapoisett

• Decision Date: 01 December 1947
• Parties: JENNEY et al. v. ASSESSORS OF MATTAPOISETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 76

76 N.E.2d 126

JENNEY et al.

v.ASSESSORS OF MATTAPOISETT.

Supreme Judicial Court of Massachusetts, Plymouth.

Dec. 1, 1947.

Reservation and Report from Superior Court, Plymouth County; Frank J. Donahue, Judge.

Proceeding on petition of Lester W. Jenney and others against Assessors of Mattapoisett to restrain assessors from including in assessment of town taxes certain sums as illegal.

Final decree for petitioners.

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

E. D. Sharkey, of Boston, for petitioners.

G. H. Potter, of New Bedford, for respondent.

QUA, Chief Justice.

This is a petition by more than ten taxable inhabitants of Mattapoisett to restrain the assessors of that town from including in their assessment of the town taxes for the current year certain sums the inclusion of which, as the petitioners contend, will amount to the raising of money ‘in * * * [a] manner other than that for and in which such town has the legal * * * right and power to raise * * * money * * *.’ G.L.(Ter.Ed.) c. 40, § 53; Dowling v. Assessors of Boston, 268 Mass. 480, 483, 484, 168 N.E. 73;Freeland v. Hastings, 10 Allen 570, 575.

The material facts, which appear from a case stated, are these: At the annual town meeting on February 3, 1947, the town, acting under an article in the warrant, voted to ‘take’ the sum of $35,000 from the ‘free cash’ in the treasury ‘to be appropriated for the reduction of taxes.’ The assessors have refused to exclude this sum from the total amount to be assessed, but have excluded only $3,000 of it, leaving $32,000 to be assessed and raised by taxation instead of being taken from ‘free cash’ as voted by the town. The commissioner of corporations and taxation had refused to give his approval in writing to deduction from the amount to be assessed of more than $3,000 of the $35,000 voted by the town.

At the meeting the town also voted to lay on the table an article ‘providing for the appropriation of $1,000 for the retirement system.’ The assessors, however, have included this $1,000 in the amount to be assessed, although, according to the case stated, the ‘liability’ of the town ‘to raise any portion of this amount, or to pay the whole or any portion thereof to the treasurer of Plymouth County will not accrue until February, 1948.’

1. The question whether the assessors were bound to deduct from the amount otherwise assessable the sum of $35,000 voted by the town to be taken from ‘free cash’ depends upon the construction of the first paragraph of G.L. (Ter.Ed.) c. 59, § 23. This paragraph reads as follows: ‘The assessors shall annually assess taxes to an amount not less than the aggregate of all amounts appropriated, granted or lawfully expended by their respective towns since the last preceding annual assessment and not provided for therein, of all amounts required by law to be raised by taxation by said towns during said year, of all debt and interest charges matured and maturing during the year and not otherwise provided for, of all amounts necessary to satisfy final judgments against said towns, and of all abatements granted on account of the tax assessment of any year in excess of the overlay of that year and not otherwise provided for; but such assessments shall not include liabilities for the payment of which towns have lawfully voted to contract debts. The assessors may deduct from the amount required to be assessed the amount of all estimated receipts of their respective towns lawfully applicable to the payment of the expenditures of the year, excluding sums to be received from the commonwealth or county for highway purposes and excluding estimated receipts from loans and taxes but including, however estimated receipts from the excise levied under chapter sixty A and receipts estimated by the commissioner under section twenty-five A of chapter fifty-eight. Deductions made by the assessors on account of estimated receipts other than those estimated by the commissioner as aforesaid shall not exceed the aggregate amount of actual receipts received during the preceding financial year from the same sources, and deductions shall not be made on account of available funds, unless in either case approval in writing shall have been obtained from the commissioner.’ See also section 21.

It will be noted that the paragraph quoted consists of three sentences. The first sentence lists items which the assessors ‘shall’ include in their assessment. The provisions of this sentence are mandatory and are binding upon the assessors and cannot be altered or evaded by the town. The second sentence provides that the assessors ‘may’ reduce the amount ascertained according to the first sentence by the estimated amounts of certain specified receipts. The provisions of this sentence are permissive and confer discretion. The correctness of this last statement as a general proposition is supported rather than impugned by the fact that the Legislature has in certain instances by special provisions required the assessors to deduct the estimated amounts of certain specified sums to be received from the Commonwealth. G.L.(Ter.Ed.) c. 58, § 25A, as revised by St. 1945, c. 624, § 5. St. 1933, c. 307, § 11, applicable in designated years but continued operative for later designated years by various enactments down to and including St. 1943, c. 285, § 4. St. 1943, c. 569, § 2. St. 1946, c. 588, § 2. See St. 1947, c. 437. The distinction between ‘shall’ and ‘may’ in G.L. (Ter.Ed.) c. 59, § 23...