208 Mass. 537 | Mass. | 1911
We assume, in accordance with the contention of the defendant, that this devise to the city of Boston did not vest absolutely in the city until its acceptance thereof (Dailey v. New Haven, 60 Conn. 314), and that as the city might elect either to accept or to decline the proposed benefaction, so it might make a conditional acceptance thereof, and then would be bound only by the terms of the devise and its own conditional acceptance. But it did unconditionally accept this devise on the terms on which it was made; and the provisions of its order of acceptance, authorizing its treasurer to receive and hold the devise, were added merely to designate the officer who should receive it and have charge thereof. As all the debts and legacies had been paid or funds set apart for their payment when the order of acceptance was passed in March, 1909, it follows that the title to all the real estate covered by the devise vested at least then in the city as its property, and this included the Chestnut Street estate here spoken of. The case presents no question of equitable conversion. On the first day of May this was the property of the city, though held in trust for a public use. On that day, the board of assessors assessed a tax thereon to “the devisees of George F. Parkman”; and the question is whether the tax was valid.
It is not contended that the property was exempt from taxation under any of the provisions of R. L. c. 12, §§ 5 et seq., but the plaintiff contends that it could not be legally taxed because
of the fact that the title to it was in the city itself upon the trust stated.
There is no doubt that land held by one municipal corporatian within the territorial limits of another for a public or governmental use is exempt from taxation, not by reason of any specific statutory exemption, but upon what always has been assumed to be the intention of the Legislature in the statutes relating to taxation. Milford Water Co. v. Hopkinton, 192 Mass. 491, and cases cited. A fortiori this is so if the land is situated in the city which owns it. On the other hand such property while not actually put to any public use, but availed of for purposes of revenue merely, is taxable by the city or town in which it is situated. Essex County v. Salem, 153 Mass. 141. In that case the court said: “ The property of counties is held exempt
In the case at bar the property was held by the city in trust to apply the income thereof to the maintenance and improvement of its Common and parks. This is a valid public charitable trust. Bartlett, petitioner, 163 Mass. 509, 514. It supplies funds for a purpose which otherwise must be provided for by taxation, and so far tends to lighten the public burdens. This is strictly a public use.
We need not consider whether the city collector could maintain an action to recover this tax under It. L. c. 13, § 32. Such a suit of course must be brought against the city itself, since that alone is properly described by the language of the assessment, which can be applied to no other natural or artificial person. For such a tax the primary liability is upon the person taxed and not upon the property for which the tax is assessed; Dunham v. Lowell, 200 Mass. 468; and it might be a serious question whether the Legislature intended in any case to cast such primary liability upon the city or town to which that tax is to be paid. But as we have said, that question is not raised.
This land however was not used directly for a public purpose, as if for example it were itself made into a public park, or were used as the site of a city hall or library building. It was held in trust to apply the income to the specific public charitable purpose stated in Mr. Parkman’s will. The land which was decided to
•The general rule laid down by our decisions is that real estate situated in one city or town but owned and used by another for a specific public purpose is exempt from taxation, but that this exemption is limited to property which is directly appropriated to such a specific purpose. Wayland v. County Commissioners, 4 Gray, 500, in which it was held that land in Wayland owned and appropriated by the city of Boston under St. 1846, c. 167, for the sole purpose of supplying that city with water, was exempt from taxation; but it was expressly stated by the court that “ if the land was valuable for and used for purposes other and distinct from those of the aqueduct, the property so used to the extent it was so used, would be liable to taxation.” The same doctrine is affirmed in later cases. Worcester County v. Worcester, 116 Mass. 193. Somerville v. Waltham, 170 Mass. 160. Miller v. Fitchburg, 180 Mass. 32.
On the same principle, the real property of a public service corporation, so far as appropriated and used within authorized limitations, but no farther, is exempt from taxation. Worcester v. Western Railroad, 4 Met. 564. Many later cases are collected and both the general principle and its limitation are stated in Milford Water Co. v. Hopkinton, 192 Mass. 491. Hammond, J., said in that case : “ The true test is whether it [the corporation owning the land] is engaged in the administration of a public trust with power to take land for that purpose. It is the character of the use to which the property is put, and not of the party who uses it, that settles the question of exemption from taxation.”
But none of these cases, and indeed no case to which our at
If taxes can be lawfully assessed by cities and towns upon their own lands, then it is the duty of the assessors to lay such assessments and of the collectors to enforce the payment thereof. These officers are strictly public officers and in no sense the agents or representatives of the municipalities. Rossire v. Boston, 4 Allen, 57, 58. Dunbar v. Boston, 112 Mass. 75. Alger v. Easton, 119 Mass. 77, 78. Welch v. Emerson, 206 Mass. 129, 130. Cox v. Segee, 206 Mass. 380, 382. Gile v. Perkins, 207 Mass. 172. They are bound to discharge faithfully their duty by assessing all taxable property and by enforcing payment of all taxes duly assessed and committed to them for collection. R. L. c. 12, §§ 2, 15, 37, 51, 67 ; c. 13, § 2; c. 25, § 68. Boston v. Turner, 201 Mass. 190, 196. Their duty to assess and collect taxes upon all the real estate which passed to the defendant by Mr. Parkman’s will, if that property is liable to taxation, is absolute, and does not at all depend, as to any particular parcel, upon whether it has or has not been conveyed by the city. But there are serious practical difficulties in such assessment and collection. Some of them already have been mentioned. The rate of taxation for city purposes is limited by statute to the amount which the Legislature • has regarded as sufficient. R. L. c. 12, § 54; c. 27, § 26. The value of the real estate received under this devise was nearly a million of dollars. If this is taxable, as the tax must be paid by the city itself, its net income will so far be
But we do not deem it necessary to pass upon this broad question. This estate was held by the city in trust for a specific public purpose. In this respect it resembles somewhat the sinking funds which in some cases cities are required by R. L. c. 27, §§ 12 et seq., to provide and maintain for the extinguishment of their indebtedness. Under § 15 these funds may be, and doubtless sometimes are, invested in mortgages upon real estate. It sometimes must be necessary to foreclose such mortgages and to take title to the land therein described. If the income of the fund is to be diminished and its accumulation checked and delayed by the payment of taxes upon the land while so held as an investment, the purpose of the statute to which we have referred,
Real estate held by educational, charitable or religious institutions is not exempted from taxation unless used and appropriated for their distinctive purposes. R. L. c. 12, § 5, cl. 3 and 7. Amherst College v. Amherst, 193 Mass. 168. Evangelical Baptist Society v. Boston, 204 Mass. 28. But this is by the express words of the statutes. In such cases the income of the property which was held not to be exempt went into the general funds of its owners, and a case like that now before us was not presented. And any inference that might be drawn against our conclusion from the language of this statutory exemption is largely met by the fact that upon the reasoning in Davis v. Treasurer Receiver General, ante, 343, Mr. Parkman’s devise would be exempt from the succession tax imposed by St. 1909, c. 490, Part IV., and c. 527. This circumstance is of course not decisive; but it is to be considered in determining what is a just and consistent mode of taxation under our statutes and decisions.
The specific provision in St. 1909, c. 490, Part II. § 67, for taxation by a city or town of land taken or purchased by it for non-payment of prior taxes, unless wholly superfluous, tends to indicate the legislative opinion that such land would not otherwise be taxable.
It is said however that in fixing the basis of State and county
We are of opinion that this estate, owned by the defendant not for its own benefit but strictly in trust to apply the income to a- particular specified charitable use, is not legally liable to assessment and taxation. The judgment for the plaintiff must be affirmed.
So ordered.