Richardson v. City of Boston

• Decision Date: 28 February 1889
• Citation: 148 Mass. 508,20 N.E. 166
• Parties: RICHARDSON et al. v. CITY OF BOSTON, (two cases.)
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 508

20 N.E. 166

RICHARDSON et al. v. CITY OF BOSTON, (two cases.)

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1889

COUNSEL

Henry D. Hyde and W.A. Sargent, for appellants.

A.J Bailey, for respondent.

OPINION

HOLMES J.

These are suits to recover taxes for the year 1883, upon two estates taken by the commonwealth on May 25, 1883, under St.1882, c. 262. The legal title to one of them was in the plaintiffs, as trustees, under the will of Samuel A. Way, ( Miner v. Pingree, 110 Mass. 47;) and as to the tax upon that one, the only question is whether the taking relieved the plaintiffs of liability. The taking, of course put an end to the city's lien upon the land and right to sell it. But, as the taking was after the 1st of May, the plaintiffs were not discharged if they were personally liable for the tax under our statutes. Kearns v. Cunniff, 138 Mass. 434, 437; See Pub.St. c. 11, § 13; Amory v. Melvin, 112 Mass. 83, 87; Hill v. Bacon, 110 Mass. 387, 388. We are of opinion that they were so liable.

The public statutes provide remedies "if a person neglects to pay his tax," first, by distress of goods, (Pub.St. c. 12, § 8;) next, by imprisonment, (secton 14;) finally, by action (section 20.) It is settled that the remedy by imprisonment applies to taxes on land. Snow v. Clark, 9 Gray, 190. The statutes plainly tell us that the remedy by distress also applies to such taxes; for, by section 23, a distress of cattle, etc., belonging to the owner of an estate taxed to another is authorized "in the same manner as if such stock or produce were the property of the person so taxed;" thus clearly assuming that the cattle of the person taxed may be distrained. The same conclusion follows from the fact that the remedy by imprisonment is only given when sufficient goods cannot be found to be levied upon. Section 14. Lothrop v. Ide, 13 Gray, 93; Hall v. Hall, 3 Allen, 5; Snow v. Clark, supra.

It seems to us very plain that the third remedy, by action, is of equal scope, and that the words "when a person neglects to pay his tax" cannot be construed to exclude taxes on real estate in this section, when they are construed to include them in the others. It is to be remembered, also, that taxes on real estate are assessed, not to the estate, but "to the person" who is owner or in possession on May 1st. Pub.St. c. 11, § 13.

The history of our legislation, adverted to in Sherwin v. Bank, 137 Mass. 444, if it cannot be said to furnish any stronger argument than is to be found in the plain words of the Public Statutes, at least leads to no different result. By the older statutes the general remedy for refusal to pay any rate or tax was distress, and, in case of failure to find sufficient chattels for the levy, arrest. It applied to taxes on persons, in respect of their land, as plainly as to other taxes. Colonial Laws 1672, (Whitmore's Ed.) 24; Poor-Laws, 1692-1693, c. 27, § 2; c. 28, § 6; c. 41, § 7; 1693-1694, c. 20, § 17; 1698, c. 5, § 1, ad finem; 1699-1700, c. 26, §§ 13-15; 1730, c. 1, §§ 12-15; 1756-1757, c. 11; St.1785, c. 50, § 6; c. 70, §§ 2, 5, 8, 10, 14; Rev.St. c. 8, §§ 7, 11.

The power to sell real estate appears in Poor-Laws 1731-1732, c. 9, as the only available means for collecting taxes upon unimproved lands belonging to non-resident proprietors. Poor-Laws 1735-1736, c. 6; 1745-1746, c. 9, etc.; St.1785, c. 70, § 7; 1794, c. 68; Rev.St. c. 8, § 19. It is then extended to the case of removing owners, (St.1785, c. 70, § 6;) and to some cases of taxes assessed to persons in possession, but not owners, (St.1785, c. 70, § 15.) But the last-cited section makes it plain that the remedies by distress and arrest still apply to taxes for land, and are regarded as the general remedies, by the proviso that if the persons assessed shall remain on the estate nine months after the rate bill is committed to the collector "the said collector shall have no other remedy than against the person or property of the person or persons assessed as aforesaid, unless," etc. Distress and arrest for taxes on land are expressly provided for also by section 10.

In Rev.St. c. 8, § 18, the lien for taxes on real estate has become general; but again it is made plain that the lien does not exclude the remedies formerly available, not only by section 16, corresponding to Pub.St. c. 12, § 23, already discussed, but by section 19, which provides that when a tax on real estate shall be assessed to a non-resident owner "the collector may, at his election, collect such tax of the said owner in like manner as in the case of a resident owner, or he may collect the same by the sale of such real estate." As was said by SHAW, C.J., of the lien created by one of the annual tax acts which led to section 18 of the Revised Statutes: "It is a remedy superadded to those of demand, distress, and imprisonment, and could not have been expected to be resorted to until other means and remedies had failed." Hayden v. Foster, 13 Pick. 492, 495. The tax acts which led to Rev.St. c. 8, § 18, are as follows: St.1821, c. 107, § 9, (February 23, 1822;) lien in Boston, 1822, c. 108, § 9, (February 11, 1823;) Boston, 1823, c. 133, § 9, (February 1, 1824;) lien made general, 1829, c. 27, § 8, (June 12, 1829;) 1829, c. 86, § 8, (March 9, 1830;) 1830, c. 151, § 8, (February 28, 1831.)

An exceptional personal liability was imposed by Poor-Laws 1761-1762, c. 16; St.1785, c. 46, § 10. A right of action for rates was given to the constables or collectors in case of death or removal of the person "duly rated," or of her marriage, being a woman, before payment. St.1789, c. 4. The words "duly rated," embrace the taxes on real estate. Rev.St. c. 8, § 15, adopt this act without change. Rich v. Tuckerman, 121 Mass. 222; and by St.1859, c. 171, the latter section was "extended to all cases in which taxes committed to a collector have remained unpaid for one year after such commitment." And this has been the law ever since. Gen.St. c. 12, § 19; Pub.St. c. 12, § 20. If, as we think, it is plain that the giving of a lien upon real estate did not displace the earlier remedies of distress and arrest, we can perceive no reason why the existence of such a lien should cut down the absolute generality of the words of the act of 1859. We therefore are of opinion, as we have said, that owners of real estate properly taxed for it are personally liable for the tax. See Sherwin v. Bank, ubi supra; Cochran v. Guild, 106 Mass. 29, 30; Burr v. Wilcox, 13 Allen, 269, 272; Wilson v. Shearer, 9 Metc. 504, 506; Sherwin v. Wigglesworth, 129 Mass. 64.

As the plaintiffs were personally liable as of May 1st, and as the failure actually to assess and to collect the tax on that day does not affect their legal position, it has not been argued that, if they had paid them, they could have recovered as on a partial failure of the consideration of the tax. No such argument could prevail. The plaintiffs, if they have been deprived of their land, have the price paid them in its place, untaxed for the current year. Moreover, when a personal liability is imposed it might be difficult to say that...