Opinion of the Justices to the Senate & the House of Representatives

297 Mass. 582 | Mass. | 1937

To The Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit these answers to the questions in an order adopted on May 20, 1937, and transmitted to them on May 24, 1937, copy whereof is hereto annexed. These questions relate to an “initiative petition for an amendment to the Constitution providing for a tax limitation on real estate.” It provides that “No taxes on real estate shall in any year be levied, assessed or collected in an amount greater than two and one-half per cent of the fair cash value.” It is a matter of common knowledge that in many cities and towns the tax rate at present is in excess of the limitation proposed to be established by the amendment.

1. The first question is whether the proposed amendment, if adopted, would constitute a law impairing the obligation of contracts. By § 10 of art. 1 of the Constitution of the United States “No state shall . . . pass any . . . law impairing the obligation of contracts.” The remedies for the enforcement of contractual “obligations assumed by a municipal corporation, which existed when the contract was made, must be left unimpaired by the legislature, or, if they are changed, a substantial equivalent must be provided. Where the resource for the payment of the bonds of a municipal corporation is the power of taxation existing when the bonds were issued, any law which withdraws or limits the taxing power and leaves no adequate means for the payment of the bonds is forbidden by the Constitution of the United States, and is null and void.” Mobile v. Watson, 116 U. S. 289, 305. It has also been held that “The obligation of a contract, in the constitutional sense, is the means provided by law by which it can be enforced, — by which the parties can be obliged to perform it. Whatever legislation lessens the efficacy of these means impairs the obligation. If it tend to postpone or retard the enforcement of the contract, the obligation of the latter is to that extent weakened.” Louisiana v. New Orleans, 102 U. S. 203, 206-207. Hendrickson v. Apperson, 245 U. S. 105, 113. It is commonly not a question of the degree of impairment of the contract. If there is any substantial impairment of the obligation it encounters the prohibition. Thompson v. Auditor General, 261 Mich. 624, 640.

If the sole remedy of the creditors holding evidences of indebtedness issued by cities and towns within this Commonwealth were the revenue to be derived from taxation, there would be grave doubt about the constitutionality of the proposed amendment. It is not inconceivable that the financial condition of some cities and towns in the Commonwealth may be such as to require drastic legislation for their regulation and protection. See St. 1931, c. 44; Broadhurst v. Fall River, 278 Mass. 167. But the remedy of creditors of municipalities in Massachusetts is not restricted to revenue derived from taxation. “By the common law of Massachusetts and of other New England States, derived from immemorial usage, the estate of any inhabitant of a county, town, territorial parish or school district, is liable to be taken on execution on a judgment against the corporation.” Hill v. Boston, 122 Mass. 344, 349-350. Hawkes v. Kennebeck, 7 Mass. 461, 463. Gaskill v. Dudley, 6 Met. 546. Chase v. Merrimack Bank, 19 Pick. 564, 569. We assume that this remedy is also available to creditors of cities as well as of towns. Nichols v. Ansonia, 81 Conn. 229, 235, 236. Therefore the remedy of a creditor of a municipality in Massachusetts is reinforced by the right to levy an execution issued on a judgment in his favor on the real estate of any person within such city or town. The right to sell such real estate on execution may not be in all respects so convenient as collection from a town or city treasurer. It cannot, however, be regarded as the impairment of the obligation of a contract to reduce the amount assessable upon real estate for purposes of taxation to a point where it may be necessary to resort to this remedy.

The first question is answered No. .

2. The second inquiry is whether the “description of the proposed measure” conforms to art. 48 of the Amendments. It is provided by said art. 48 that “a description of the proposed measure” must be upon the petition in the form in which it will appear on the ballot. Art. 48, The initiative, II, § 3; The Referendum, General Provisions, IV. Information for Voters. “'Description’ in these circumstances signifies a fair portrayal of the chief features of the proposed law in words of plain meaning, so that it can be understood by the persons entitled to vote. It must be complete enough to convey an intelligible idea of the scope and import of the proposed law. It ought not to be clouded by undue detail, nor yet so abbreviated as not to be readily comprehensible. It ought to be free from any misleading tendency, whether of amplification, of omission, or of fallacy.” Opinion of the Justices, 271 Mass. 582, 589. The description of the proposed measure states that it adds to the Constitution an article “which provides that real estate . . . shall not in any year be taxed in an amount greater than two and one-half per cent of the fair cash value thereof.” The proposed amendment provides that “No taxes on real estate shall in any year be levied, assessed or collected in an amount greater than two and one-half per cent of the fair cash value.” It is apparent that this description does not fairly state the substance of the proposed amendment. The description confines its operation to taxation in any year while the proposed measure itself prohibits the levying, assessment or collection in any year of taxes greater than the amount specified. The collection of taxes constitutes an act in addition to and different from the assessment and levying of taxes. The description is inadequate and misleading. Brooks v. Secretary of the Commonwealth, 257 Mass. 91, 99. It follows that the description does not meet the requirement specified in subdivision (a) of question 2. It is not deemed necessary to answer in detail subdivisions (6) and (c) in question 2. Particularity as to the operation of the act may not be necessary in the description. The interpretation of the proposed amendment as to powers of exemption and taxation of machinery as personal property was not required in a description and we express no opinion on those points.

The second question is answered No.

3. In view of the answers already given it does not seem necessary to consider question 3.

Arthur P. Pugg.

John C. Crosby.

Edward P. Pierce.

Fred T. Field.

Charles H. Donahue.

Henry T. Lummus.

Stanley E. Qua.