Old South Ass'n in Boston v. City of Boston

Decision Date19 June 1912
Citation212 Mass. 299,99 N.E. 235
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Nathan Matthews, William G. Thompson, Richard W. Hale, and F. W Grinnell, all of Boston, for petitioner.

Thomas M. Babson, of Boston, for respondent.



The petitioner was organized under St. 1877, c. 222, 'for the purpose of acquiring and holding the Old South Meeting House in Boston and the land under and adjacent to the same upon the corner of Milk street and Washington street in said city for public, historical, memorial, educational, charitable and religious uses and none other.' Before 1877 the Old South Meeting House had been given up as a place of worship by the religious society which had occupied it since its erection in 1729. Pursuant to the power conferred by this statute the petitioner acquired title to the real estate thus described.

This petition is brought for the assessment of damages occasioned by the taking of a part of the land lying north of the meeting house for an entrance to the subway. The case was submitted to the jury with instructions under which recovery was permitted on the ground that the petitioner 'had a right * * * to use the land adjacent to the Meeting House in the most profitable manner, whenever it saw fit to do so for the purpose of producing income to preserve the Meeting House.' The petitioner contends that it should have been allowed to recover in addition such sum as would 'compensate it for that feature or special damage contained in its loss by the taking which is created by the charter exemption from taxation of the space taken.'

The charter of the petitioner contains in section 4 a special exemption from taxation in these words: 'Said meeting house and land shall be exempt from taxation while said meeting house shall be used for any of the purposes aforesaid and shall be exempt from any tax for the year eighteen hundred and seventy-seven.' This exemption from taxation is materially different from that found in the general law at the time it was passed or at any time since. Gen. Sts. c. 11, § 5, cl. 3, as affected by St. 1874, c. 375, § 8 (now St. 1909, c. 490, pt. 1, § 5, cl. 3). It is plain that the contention of the defendant would be unanswerable, if the rights of the petitioner depended upon the general law. Real estate held by the ordinary educational, charitable or religious institution is exempt from taxation only to the extent that it is appropriated to their distinctive uses. Amherst College v. Amherst, 193 Mass. 168, 79 N.E. 248; Evangelical Baptist Society v. Boston, 204 Mass. 28, 90 N.E. 572. If the Legislature had intended only this exemption, no special provision touching taxation would have been required. But the Legislature meant something more than the general exemption granted to kindred societies. St. 1877, c. 222, took effect on May 11th of that year.

Before then the meeting house itself, by special permission of the Legislature, had been leased to the United States for a post office and utterly abandoned as a place of religious worship, and hence together with the adjacent unoccupied land had become subject to taxation. Old South Society v. Boston, 127 Mass. 378. Taxes for the year 1877 had accrued before the enactment of the petitioner's act of incorporation. Yet the whole property was exempted expressly from taxation for that year. It is apparent from this, as well as from the provision of section 1 to the effect that the petitioner might lease the meeting house and land before acquiring title thereto, that the exemption from taxation is not grounded upon ownership by a charitable organization, but upon other considerations. The manifold historic incidents connected with the Old South Meeting House and the stirring scenes enacted within its walls have made it a shrine precious beyond price to every lover of the commonwealth and to all who cherish the traditions of liberty under government upon this continent. For reasons of its own the religious society which had owned the building had sold it. It was on the point of being torn down and the land devoted to commercial uses, for which it had become exceedingly valuable. Public-spirited citizens, desiring to preserve it as a fountain of patriotic inspiration for future generations, raised by subscription a sum of money large in itself, but small compared with the market value of the property. To this end title was taken in the name of Royal M. Pulsifer, and mortgages to the amount of $300,000 were given to secure the balance of the purchase price. It is obvious that the preservation, care and repair of the meeting house as a historical monument under this burden of indebtedness would present a difficult problem.

The extraordinary public interest and popular character of this plan for the preservation of the meeting house is demonstrated by the provisions of sections 1 and 2 to the effect that the Governor of the commonwealth, the mayor of the city of Boston, and the presidents of four learned institutions are named among the incorporators, and these, with two elected by the city council of Boston and others chosen by the petitioner, constitute a board of managers, and by the appropriation of $10,000 to the petitioner from the treasury of the commonwealth, by chapter 26 of the Resolves of 1878.

The inference from the grammatical construction of the tax exemption section quoted above is that the property to be acquired by the petitioner is a unit. It is referred to as 'said Meeting House and land.' This evidently means the land more particularly described in section 1 as that 'under and adjacent to the same [the Meeting House] upon the corner of...

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