Napier v. City of Springfield

• Citation: 304 Mass. 174,23 N.E.2d 157
• Parties: CHARLES NAPIER v. CITY OF SPRINGFIELD.
• Decision Date: 25 October 1939
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

304 Mass. 174

23 N.E.2d 157

CHARLES NAPIER v. CITY OF SPRINGFIELD.

Supreme Judicial Court of Massachusetts, Hampden.

October 25, 1939

May 4, 1939.

Present: FIELD, C.

J., QUA, DOLAN COX, & RONAN, JJ.

Tax, Foreclosure of right to redeem, Sale of land of insufficient value. Constitutional Law, Equal protection of law, Due process of law. Sections 79 and 80 of G.L. (Ter. Ed.) c. 60, as amended by St. 1933, c. 325,

Sections 14, 15 and St. 1935, c. 173, Sections 1, 2, are constitutional.

PETITION, filed in the Land Court on May 4, 1938. After hearing by Fenton, J. the petition was dismissed.

J. R. Jennings, for the petitioner. A.L. Mastroianni, Assistant City Solicitor for the respondent.

H. Parkman, Jr., S.

S. Dennis, & N.

Moger, by leave of court submitted a brief as amici curiae.

DOLAN, J. This is a petition (entitled "Bill to Redeem") under G.L (Ter. Ed.) c. 60, Section 76, as amended by St. 1935, c. 318, Section 1, and St. 1936, c. 189, Section 2, to redeem land from a tax sale. The case was heard by the judge on a statement of agreed facts, and comes before us on the appeal of the petitioner from the decision of the judge ordering that the petition be dismissed. The sole issue is whether the provisions of G.L. (Ter. Ed.) c. 60, Sections 79, 80, as amended by St. 1933, c. 325, Sections 14, 15, and St. 1935, c. 173, Sections 1, 2, are constitutional. Those sections as amended provide as follows: Section 79: "After two years from the taking or purchase by a town of any lands for non-payment of taxes, the commissioner may, and on written application of its treasurer shall, inquire into the value of such lands. If the commissioner is of opinion that such lands are of insufficient value to meet the taxes, interest and charges, and all subsequent taxes and assessments thereon, together with the expenses of a foreclosure under section sixty-nine, he shall make affidavit of such finding, which shall be recorded in the registry of deeds for the district where the town is situated. Upon the recording thereof the treasurer may sell all the parcels included therein, severally or together, at public auction to the highest bidder, first giving notice of the time and place of sale by posting a notice of the sale in some convenient and public place in the town fourteen days at least before the sale; provided, that the treasurer at such auction may reject any bid which he deems inadequate. If the sale under this section shall not be made within four years from said taking or purchase, it shall be made by the treasurer for the time being when he deems best, or at once upon service on him of a written demand by any person interested therein. The treasurer shall execute and deliver to the highest bidder whose bid has not been rejected as inadequate a deed, without covenant except that the sale has in all particulars been conducted according to law. Title taken pursuant to a sale under this section shall be absolute upon the recording of the deed of the treasurer in the proper registry of deeds within sixty days of its date"; Section 80: "If no person bids at such a sale or if no bid deemed adequate by the treasurer is made thereat and if the sale has been adjourned one or more times, the treasurer shall then and there make public declaration of the fact, and if no bid or no bid deemed adequate as aforesaid is then made he shall give public notice that he purchases for the town by which the tax is assessed; or if the person to whom the land is sold does not within ten days pay to the treasurer the sum bid by him the sale shall be void and the town shall be deemed to be the purchaser of the land. If the town becomes the purchaser hereunder, the treasurer shall execute to it a deed which shall set forth the fact that no bid or no bid deemed adequate as aforesaid was made at the sale or that the purchaser failed to pay the amount bid, as the case may be. The title of the town to land conveyed by deed of the treasurer under this section shall be absolute upon the recording of said deed in the proper registry of deeds within sixty days of its date."

The material facts are these: The petitioner, a resident of the respondent city, owned certain land there, upon which taxes were assessed in the year 1934. These taxes were not paid when due and continued to be unpaid up to the time of filing the petition. On September 16, 1935, the land was sold for nonpayment of taxes and was purchased by the respondent. The tax collector's deed to the respondent was duly recorded. On October 27, 1937, an affidavit of the commissioner of corporations and taxation, hereinafter referred to as the commissioner, made under the provisions of G.L. (Ter. Ed.) c. 60, Section 79, as amended, was recorded in the Hampden County Registry of Deeds. The affidavit is dated October 23, 1937, and sets forth in effect that, in the opinion of the commissioner, the premises in question were of insufficient value to meet the taxes, interest and charges thereon, and all subsequent taxes and assessments thereon, together with the expenses of foreclosure under G.L. (Ter. Ed.) c. 60, Section 69, that they had a value of only $38, and that the respondent's treasurer was authorized to sell the premises at public auction under the provisions of Section 79 as amended. On November 26, 1937, the respondent's treasurer, acting in pursuance of the provisions of G.L. (Ter. Ed.) c. 60, Sections 79 and 80, as amended, and proceeding in every respect according to the same, sold the premises to the respondent. On March 29, 1938, the petitioner made a tender of the amounts required under G.L. (Ter. Ed.) c. 60, Section 62, as further amended by St. 1936, c. 392, Section 2. (See now St. 1938, c. 415, Section 5.) This tender was refused, and the present petition was filed on May 4, 1938. It is not controverted that in all of the steps taken by the respondent in connection with the proceedings in question all the statutory requirements were complied with. The judge ruled that the provisions of Sections 79 and 80 were constitutional, and that the title of the respondent to the premises became absolute upon the recording of the deed to it of the treasurer.

The petitioner has argued that under the provisions of Sections 79 and 80 he has been deprived of his property without due process of law, and has been denied equal protection of the laws in violation of the provisions of the "Fourteenth Amendment to the Constitution of the United States and [of] Article 12 of the Declaration of Rights in the Constitution of Massachusetts." His first contention is based upon the fact that the statutes in question do not provide for direct notice of the intended sale thereunder. In support of his second contention he argues that under the provisions of said statutes equal protection of the laws is denied since they relate only to lands purchased by municipalities for nonpayment of taxes which, in the opinion of the commissioner, are of insufficient value to meet the taxes, interest and charges, and subsequent taxes and assessments thereon, together with the expenses of foreclosure under Section 69, and not to all lands purchased by municipalities for nonpayment of taxes.

The importance of collecting taxes in order that governmental functions may be discharged is universally recognized. In the collection of taxes, the public interest requires that land be taken for nonpayment of taxes and sold under such circumstances that the necessary revenue may be obtained. Taxpayers, of course, have fundamental rights which may not be transgressed by the taxing powers, and the interest of the landowner requires that he be given notice and opportunity to be heard on the question of the validity of the tax sometime before the tax becomes conclusively fixed. Due process under the Federal or State Constitution requires that such notice and opportunity be accorded him. Harrington v. Glidden, 179 Mass. 486 , 495; affirmed sub nomine Glidden v. Harrington, 189 U.S. 255. Corcoran v. Aldermen of Cambridge, 199 Mass. 5 , 10. Jackson Lumber Co. v. McCrimmon, 164 F. 759, 764. Gallup v. Schmidt, 154 Ind. 196, 202; affirmed, 183 U.S. 300. It "is only necessary that the taxpayer shall be afforded an opportunity to interpose objections to the validity of the tax, that his land is not liable for taxes, or that the manner of assessing or collecting them is not conformable to the statute, at some stage of the tax proceeding, before he is irrevocably deprived of his property, and that such hearing shall be had before some board or tribunal competent to afford relief, in case of invalidity or injustice." Ohlwine v. Bushnell, 32 S.D. 426, 431. See also Bartlett v. Wilson, 59 Vt. 23. Statutes failing to provide for such hearing will not be upheld. West Hartford v. Coleman, 88 Conn. 78,

80. Monticello Distilling Co. v.

Mayor & City Council of Baltimore, 90 Md. 416, 427, 428. Heth v. Radford, 96 Va. 272, 274. Central of Georgia Railway v. Wright, 207 U.

S. 127.

It has been held that due process does not require a notice and opportunity for hearing as to each step in the assessment and enforcement of taxes. Newton v. Roper, 150 Ind. 630, 632. Maxwell v. Page, 23 N.M. 356, 363, and cases cited. Hagar v. Reclamation District No. 108, 111 U.S. 701 711. The petitioner concedes in his brief that there is no violation of due process in our statutes relating to the assessment of taxes on real property and to the sale of the land in the first instance for nonpayment thereof. The general trend of decisions indicates that once a valid assessment of taxes and a sale for nonpayment of the same have been made, the method of foreclosure of the right to redeem lies within the legislative discretion. Merchants' Trust Co. v. Wright, ...