Inhabitants of Cheshire v. County Commissioners of Berkshire
1875 Mass. LEXIS 377
Mass.
1875
Check Treatment
Wells, J.

This case is presented to the court solely upon the question of the construction and validity of the St. of 1872, e. 306, which is as follows: “ All reservoirs of water, with the dams connected therewith and the lands under the same, used to maintain a uniform supply of water for mill power, shall be assessed for the purposes of taxation in the town or towns where located, at a valuation not exceeding a fair valuation of land of like quality in the immediate vicinity.”

We are unable to construe this statute as requiring merely that che value of land and structures, appropriated for the purpose of creating and applying water power for mills, should be apportioned between different towns, in each of which part only of the works is situated, so that the land alone should be taxed in the town where it is situated, and the artificial structures or appliances for creating the power should be taken as included in the estimate of the value of the power itself, and taxed in the same town as the site upon which it is applied and used; nor can we regard it in purpose and effect as providing, by way of classification merely, that such structures and' appliances shall be estimated only as incident to and included in the value of the power at the site where it is used and valued, wherever located. Lowell v. County Commissioners, 6 Allen, 131. Pingree v. County Commissioners, 102 Mass. 76. The terms in which the act is framed forbid, such a construction. It makes the town in which the reservoir is situated the place, and the only place, where any tax can be laid on account of the value, as property, of the entire reservoir; thereby excluding it from estimation as incident to, or as an element of value in, that capacity of use which is taxable as power, in connection with the site upon which it is applied to the working of mills. It does not purport to have for its object the apportionment of the rights of taxation between different towns. Its terms apply equally to reservoirs which are in the same town with the mills for whose supply they are maintained, as to those which are in other towns ; and whether held by the same parties and in the same right as the mills and mill site, or by an entirely separate and independent ownership. It is not a statute of exemption. Neither its title nor its provisions indi*389cate any consideration of public service, or relief required by the public welfare, which might justify such an exemption or lead to the supposition that it was so intended; nor is any such consideration to be implied from the character and use of the property. We need not determine, therefore, whether, if it were to be construed as an exemption, it could be sustained as such.

Regarding the statute then as declaring the entire reservoir to be a distinct and separate subject of valuation for the purposes of general taxation, and requiring that valuation to be made upon a basis which excludes all increase of value by reason of the improvements or additions made thereon for the construction and maintenance of the reservoir, however valuable or costly, the question is whether it conflicts with the constitutional provision which relates to the exercise of the taxing power by the Legislature. That provision requires that all taxes levied under its authority be “ proportional and reasonable,” and forbids their imposition upon one class of persons or property at a different rate from that which is applied to other classes, whether that discrimination is effected directly in the assessment or indirectly through arbitrary and unequal methods of valuation. Portland Bank v. Apthorp, 12 Mass. 252. Commonwealth v. People’s Savings Bank, 5 Allen, 428, 431. Commonwealth v. Hamilton Manufacturing Co. 12 Allen, 298, 301. Practically it is impossible to secure exact equality or proportion in the imposition of taxes or distribution of public burdens requiring taxation. The test, in all legislative enactments affecting taxation, is that their aim be towards that result, by approximation at least. No enactment respecting taxation under this clause conforms to its provisions it it directly and necessarily tends to disproportion in the assessment. It appears to us that the practical operation of this statute, construed as we have found ourselves compelled to construe its terms, is directly and necessarily to produce disproportion, to a greater or less extent, in the levy of all taxes based upon valuations which include such property as that to which it applies. That being its necessary tendency, it is immaterial whether the effect upon the general distribution of the tax be great or small, it is equally in violation of the Constitution, and therefore not within the legitimate authority of the Legislature. Consequently the abatement ordered by the county commissioners was erroneously made, and the Writ of certiorari must be issued.