White v. Gove

• Citation: 67 N.E. 359,183 Mass. 333
• Parties: WHITE v. GOVE.
• Decision Date: 22 May 1903
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

183 Mass. 333
67 N.E. 359

WHITE
v.
GOVE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1903.

Appeal from Supreme Judicial Court, Suffolk County; William Caleb Loring, Judge.

Bill by Josiah J. White against Wesley A. Gove to set aside a tax deed. From a decree dismissing plaintiff's bill he appeals, and files exceptions to an order denying his motion to vacate the decree. Decree for plaintiff, and exceptions overruled.

[183 Mass. 334]

[67 N.E. 360]

W. O. Childs and Harvey N. Shepard, for appellant.

C. F. Choate, Jr., for appellee.

KNOWLTON, C. J.

The principal question in this case is whether a certain assessment for the construction of a sewer, made under St. 1892, p. 444, c. 402, is valid. Upon facts before the court in two previous cases this statute was said to be unconstitutional. Weed v. Boston, 172 Mass. 28, 51 N. E. 204,42 L. R. A. 642;Dexter v. Boston, 176 Mass. 247, 57 N. E. 379,79 Am. St. Rep. 306. In Lorden v. Coffey, 178 Mass. 489, 60 N. E. 124, a similar statute was held unconstitutional. Lately it has been contended before us at different times that the decisions of the Supreme Court of the United States in French v. Barber Asphalt Paving Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879, and the numerous cases which immediately follow it in the same volume, have not only changed the law as it was generally understood to be laid down in Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443, but have materially affected the rule in this commonwealth. It is to be noticed at the outset that these cases in the Supreme Court deal only with a question under the Constitution of the United States, while Weed v. Boston, ubi supra, was decided before Norwood v. Baker, and without reference to the Constitution of the United States, the statute being held to be in violation of the Constitution of Massachusetts, c. 1, § 1, art. 4.

It is difficult to understand what is the exact meaning of the majority of the court in French v. Barber Asphalt Paving Co., ubi supra, and in the cases that follow it, for they seemingly reaffirm Norwood v. Baker, and distinguish it from the cases then decided. In many state constitutions the authority given to the legislative body to enact laws establishing taxation is general, while in others, as in this commonwealth, the Constitution gives authority only ‘to impose and levy proportional [183 Mass. 335]and reasonable assessments, rates and taxes.’ Const. Mass. c. 1, § 1, art. 4. Whether in the later cases the Supreme Court of the United States was considering statutes founded on general legislative authority, while in the earlier case of Norwood v. Baker they assumed that the power was limited to the enactment of laws authorizing only such taxes as are proportional and reasonable, and whether the seeming difference between the earlier decision and the later decisions is due to that fact, we need not consider.

Questions in regard to the constitutionality of laws relating to taxes have frequently arisen in this commonwealth, and the test has always been whether the tax was proportional and reasonable. Oliver v. Washington Mills, 11 Allen, 268;Commonwealth v. Cary Improvement Co., 98 Mass. 19, 23;Holt v. City Council of Somerville, 127 Mass. 408.

As was pointed out in Sears v. Boston, 173 Mass. 71, 53 N. E. 138,43 L. R. A. 834, and as was held in many other cases before Norwood v. Baker was decided, if one is required to pay a special assessment upon his property in addition to the general assessment which he pays equally with every one else, this special assessment cannot properly be founded on anything but benefits to the property. If he pays his proper proportion of the general tax, and then pays a special assessment greater in amount than the benefit that he receives, his entire tax is excessive, unreasonable, and disproportional. Hence, under a constitution which requires that taxes shall be proportional and reasonable, a system which imposes upon the property, in addition to its proportional share of the general tax, a special assessment without an equivalent in benefit, is unconstitutional. We have no doubt of the correctness of our decisions which hold that special assessments...