Perkins v. Inhabitants of Town of Westwood

• Decision Date: 05 March 1917
• Citation: 226 Mass. 268,115 N.E. 411
• Parties: PERKINS et al. v. INHABITANTS OF TOWN OF WESTWOOD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 268

115 N.E. 411

PERKINS et al.

v.INHABITANTS OF TOWN OF WESTWOOD.

Supreme Judicial Court of Massachusetts, Norfolk.

March 5, 1917.

Report from Supreme Judicial Court, Norfolk County.

Complaint by Thos. N. Perkins and others, trustees, against the Inhabitants of Town of Westwood. Case reported. Judgment for defendants.

Ropes, Gray, Boyden & Perkins and Clifford H. Walker, all of Boston, for complainants.

Wm. G. Rowe, of Brockton, for respondents.

RUGG, C. J.

[1] The constitutionality of St. 1914, c. 761, is attacked in this case. All rational presumptions are made in favor of the validity of every act of the legislative department of government, and the court will not refuse to enforce it unless its conflict with the Constitution is established beyond reasonable doubt. It will not be declared void unless it is impossible by any reasonable construction to interpret its provisions in harmony with the Constitution. These were early declared by this court to be fundamental principles of constitutional law, and they have been followed consistently for more than a century. Portland Bank v. Apthorp, 12 Mass. 252, 253;Wellington, Pet'r, 16 Pick. 87, 95,26 Am. Dec. 631; Opinion of Justices, 8 Gray, 20; Id., 211 Mass. 614, 98 N. E. 338;Com. v. People's Five Cents Savings Bank, 5 Allen, 428, 431, 432;Com. v. Hamilton Woolen Co., 12 Allen, 298, 301;Northampton v. Co. Commissioners, 145 Mass. 108, 109, 13 N. E. 388;Bogni v. Perotti, 224 Mass. 152, 159, 112 N. E. 853.

Matters somewhat like and kindred to the question here presented for decision were among subjects called to the attention of the justices and touching which opinions were given in 195 Mass. 607, 84 N. E. 499,208 Mass. 614, 95 N. E. 927, and 220 Mass. 613, 108 N. E. 570. These opinions, as has been decided repeatedly, are purely advisory, are given without the benefit of argument, and are formed and expressed under such circumstances that they cannot be considered as binding authorities and are open to reconsideration and revision. They, however, presuppose ‘that the subject to which’ they relate has ‘been judicially examined and considered.’ The justices, when called upon sitting as a court, to deal with such questions again, regard it as their ‘duty most sedulously to guard against any influence which might flow from previous consideration’ of the same questions in their advisory capacity. Green v. Com., 12 Allen, 155, 164;Young v. Duncan, 218 Mass. 346, 351, 106 N. E. 1;Woods v. Woburn, 220 Mass. 416, 418, 107 N. E. 985;Bergeron, Pet'r, 220 Mass. 472, 475, 107 N. E. 1007;Answer of Justices, 148 Mass. 623, 625, 21 N. E. 439;Id., 214 Mass. 602, 603, 102 N. E. 644.

This case must be decided according to the guidance of these thoroughly established and well recognized principles.

The salient provisions of the act here assailed are that it is enacted by section 1, that:

‘A bond secured by mortgage on tangible property * * * within or without the commonwealth which is subject to taxation wherever situated and which is there actually taxed shall be exempt from taxation within the commonwealth, if the fact of the taxation of such property is determined by the tax commissioner and the bond is registered as hereinafter provided.’

Provision is made by section 2 for an optional method of registration of such bonds with the tax commissioner after determination by him that they are secured by mortgage upon property which actually has been taxed during the preceding year, upon payment of ‘a fee at the rate of thirty cents for each hundred dollars of the par value of the bond,’ and thereupon such bonds shall be exempt from taxation for one year from the date of registration. The effect of section 3 is that one half the fees received in this way shall be retained by the commissioner and the other half distributed among the cities and towns in which the owners of the bonds reside, and that St. 1909, c. 490, pt. 1, §§ 16, 17, and 18, relative to taxation of mortgages upon real estate in this commonwealth, shall not be affected by the act. By St. 1915, c. 135, in effect after the assessment of the tax here complained of, the entire amount of fees is to be retained by the commissioner.

The controlling provisions of the Constitution are found in part 2, c. 1, § 1, art. 4, in these words:

‘Full power and authority are hereby given and granted to the said 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 upon any produce, goods, wares, merchandise, and commodities, whatsoever, brought into, produced, manufactured, or being within the same.’

The forty-fourth article of amendment to the Constitution, having been approved and ratified by the people subsequent to the assessment of the tax here sought to be recovered, has no pertinency to this issue.

An analysis of the statute here assailed shows that it does not make an absolute exemption of any property from taxation. It merely exempts from taxation upon the same basis with other property of residents within the state, such bonds, and only such bonds, as may be registered in accordance with its requirements. It does not permit the registration of all bonds, but only of those secured by mortgage on tangible property. All other bonds, secured and unsecured, are excluded from its operation. Other bonds may be secured quite as adequately by the mortgage or pledge of property, properly describable as intangible and in that form subject to taxation and actually taxed, and yet such bonds are not within the scope of the act. Still other bonds may be fully as secure by reason of the tangible assets of the maker subject to taxation and actually taxed, and yet such bonds are not within the purview of the act.

The statute is not compulsory in its terms. It is purely optional with the owners of the bonds whether they comply with its provisions. Its manifest purpose is to offer to the owners of the restricted class of bonds therein described an election either to register their bonds or to decline to register them. An almost inevitable consequence of this elective feature is that legal taxation upon all the bonds of this kind within the commonwealth would be unequal and disproportionate. Those owners who for any reason declined to register their bonds would be liable to taxation therefor on their fair cash valuation at the local rate prevailing in the city or town of their residence, while those owners who preferred to register their bonds would pay to the commonwealth thirty cents for each one hundred dollars of par value. The rate for such registering owners would be the same throughout the state regardless of the rate established for the municipality where each might reside. The taxation would not be uniform as to both classes of owners.

The Legislature has a considerable power to exempt certain forms of property from one kind of taxation in order to avoid double taxation when the same property in the same or in another form has made adequate contribution to the support of government. This principle is well illustrated by the system of taxation of domestic corporations established by the general court....