City of Chelsea v. Treasurer & Receiver General , 237 Mass. 422 ( 1921 )

Rugg, C. J.

This is a petition for certiorari by the city of Chelsea against one who was Treasurer and Receiver General and those who are trustees appointed under Spec. St. 1918, c. 159, for the public operation of the Boston Elevated Railway Company system.

It is manifest that the petition cannot be maintained against the person named as Treasurer and Receiver General. He has ceased to hold that office. Knights v. Treasurer & Receiver General, 236 Mass. 336. The duties imposed on the Treasurer and Receiver General under c. 159 are not in any particular judicial or quasi judicial, but are purely executive and administrative, and hence are not subject to examination by certiorari. Swan v. Justices of the Superior Court, 222 Mass. 542, 544. The Attorney General, however, raises no preliminary objections and the case is considered on its merits.

The petition assails the constitutionality of Spec. St. 1918, c. 159, in several particulars different from those considered in Boston v. Treasurer & Receiver General, ante, 403. The provisions of the statute are there set forth in some detail and need not here be repeated. That decision in all respects is adopted and affirmed so far as applicable to the issues here presented. The copious authorities there cited need not be referred to again.

It there has been decided that the operation of the Boston Elevated Railway system through trustees appointed by the Governor is a public purpose, that moneys may be raised by taxation to aid in such public operation, and that the distribution of the burden thereof amongst the several cities and towns there described is within the constitutional power of the Legislature.

It is urged that c. 159 is unconstitutional because the power vested thereby in the trustees to determine how much and in what proportion the cities and towns shall be obliged to contribute to make up the deficit arising from the operation of the railway system is contrary to art. 12 of the Declaration of Rights of the Constitution of Massachusetts and to arts. 5 and 14 of the Amendments to the Constitution of the United States, in that thereby the petitioner is deprived of its estate and property without due process of law.

Nothing need be said concerning said Amendment 5, because that is obligatory only upon Congress and federal courts and has no concern with State action. Holden v. Hardy, 169 U. S. 366, 382. Minneapolis & St. Louis Railroad v. Bombolis, 241 U. S. 211, 217.

There can be no constitutional objection to the raising of money by taxation in a constitutional manner for use in defraying expenses incurred for public purposes. It is only when an attempt is made by taxation to raise money for a private use, or to raise money for a public use by methods which are contrary to common right, that private property can be said to be taken without due process of law. It already having been decided that the purpose for which taxation is authorized by c. 159 is public, it is necessary only to consider the methods by which such taxation may be made under that chapter.

The contention of the petitioner is that c. 159 is unconstitutional because it contains no provision for notice and a hearing by the trustees before determining the amount of the deficiency and making demand upon the Treasurer and Receiver General for payment to meet that deficiency. ,

The statute makes no express provision for a public hearing to the cities and towns to be affected, either as to the rates of fare to be established, the charges to be made for depreciation, obsolescence and rehabilitation, or the determination of the proportion of the deficiency, which the Commonwealth is called upon to pay, among the cities and towns. Provision for such hearing is not essential to the validity of the statute. The argument of the petitioner appears to proceed on the theory that the present assessment is of the same kind as those levied by way of betterment for local improvement, and that all steps required for validly making such betterment assessment must be taken. That is a misconception. Its unsoundness is plain in several aspects.

It is apparent from the review of the provisions of the act and the examination of its scope and purpose in Boston v. Treasurer & Receiver General, ante, 403, that it makes no assessment for a local improvement. It establishes an enterprise purely public in its nature and not in any respect for the benefit of property in private ownership. The assessment authorized by § 14 is an apportionment of one of the burdens of general taxation. It is not the levy of a betterment assessment and has nothing in common with such an assessment. The case at bar, like Kingman, petitioner, 153 Mass. 566, deals "with a legislative distribution of public burdens among different political subdivisions of' the Commonwealth, and the language in it must be construed in reference to the facts to which it relates. The right to apportion public burdens among cities, towns, and counties as it deems reasonable, in reference to benefits and to other considerations which are not capable of exact estimation in money, is within the power of the Legislature under the first part of art 4, c. 1, § 1, of the Constitution, and is not the same as the right to impose and levy taxes upon individuals. It is of the same nature as the right to create, change, or abolish cities, towns, or other political subdivisions of the Commonwealth.” Sears v. Board of Aldermen of Boston, 173 Mass. 71, 78. De las Casas, petitioner, 180 Mass. 471. Kingman, petitioner, 170 Mass. 111, 119. Scituate v. Weymouth, 108 Mass. 128, 130. The numerous decisions respecting principles to be observed in the assessment of betterments upon private property are irrelevant to an assessment like this. Mayor & Aldermen of Springfield, petitioners, 234 Mass. 578, 583. There is no greater right to a notice and hearing in the ascertainment of such a tax than in the levying of the ordinary annual State tax.

There is no delegation of legislative power in the authorities vested in the trustees. The general principles to be observed are set forth in the statute. It is the carrying out of those principles with discretion, fidelity and wisdom that is vested in the trustees. However onerous that may be as an administrative burden, it does not partake of the nature of a legislative function. "While such details might be included in the statute, no constitutional mandate is violated by leaving them to the decision of the trustees.

The petitioner is not a private property owner. So far as it may hold title to property devoted to public uses, it is not subject to taxation. Burr v. Boston, 208 Mass. 537. The petitioner is not an ordinary taxpayer, whose property may be taken by an illegal assessment. The petition fails to set out any private property right in the petitioner in any way to be affected by the assessment. "A city is only a political subdivision of the State, made for the convenient administration of the government. It is an instrumentality, with powers more or less enlarged, according to the requirements of the public, and which may be increased or repealed at the will of the Legislature. In directing, therefore, a particular tax by such corporation . . . the Legislature only exercises a power through its subordinate agent.” New Orleans v. Clark, 95 U. S. 644, 654. It is not open to doubt that the General Court may create a district and name the municipalities of which it shall be composed for the purpose of bearing some particular burden of taxation, which it determines to have relation thereto. In so doing it is not compelled to give notice to the parties resident within the territory or to permit a hearing before itself, one of its committees, or any other tribunal, as to the questions whether property ought to be within the taxing district, the proportion of taxation to be levied upon any city or town within the district, and the extent of benefit conferred upon each of them. Norwich v. County Commissioners, 13 Pick. 60. Kingman, petitioner, 153 Mass. 566. Prince v. Crocker, 166 Mass. 347, 359. Williams v. Eggleston, 170 U. S. 304, 311. Carson v. Sewerage Commissioners of Brockton, 175 Mass. 242, 244, affirmed in 182 U. S. 398. Kingman, petitioner, 170 Mass. 111, 119. De las Casas, petitioner, 180 Mass. 471, 472. Opinion of the Justices, 234 Mass. 612.

A municipality has only those powers which expressly or by necessary implication are conferred upon it by statute. Higginson v. Treasurer & School House Commissioners of Boston, 212 Mass. 583. The right to institute litigation for and to represent individual taxpayers in such a proceeding as this is not among such powers.

Every taxpayer has the ordinary remedies open to him under the general law as to taxation for testing the validity of the assessment of which complaint here is made. The constitutional sufficiency of those provisions under the Constitution of Massachusetts was upheld in Harrington v. Glidden, 179 Mass. 436, and under the Constitution of the United States in Glidden v. Harrington, 189 U. S. 255, Central of Georgia Railway v. Wright, 207 U. S. 127, Turner v. Wade, 254 U. S. 64. Questions of that sort of course are not and cannot be raised in this proceeding.

The provisions of § 14 violate no constitutional provision in providing for the assessment or in ascertaining its apportionment. In this respect the case at bar is within the authority of numerous decisions. Hingham & Quincy Bridge & Turnpike Corp. v. County of Norfolk, 6 Allen, 353. Agawam v. Hampden, 130 Mass. 528. Opinion of the Justices, 234 Mass. 612. Mayor & Aldermen of Springfield, petitioners, 234 Mass. 578. Boston v. Treasurer & Receiver General, ante, 403.

The return of the trustees must be taken to be true in its statement of facts. Weld v. Gas & Electric Light Commissioners, 197 Mass. 556, 559. It is plain from that return that the trustees gave adequate hearing to the petitioner. The method followed by the trustees in ascertaining the proportion of persons in the several cities and towns using the service of the railway company as the basis for the assessment and the computations made there- ■ for do not contravene any provisions of the Constitution. Every ¡ rational presumption is made in favor of such a decision by the . trustees. Actual count of persons boarding cars' of the railway company in the several municipalities during periods fairly typical cannot be said to be unjust. No better method has been suggested in argument.

The averments of the petition that the trustees “proceeded unjustly, arbitrarily, and illegally” are of slight consequence and add nothing to the facts alleged. The facts stated in the return of the trustees demonstrate that they proceeded with deliberation, sagacity, in the spirit of justice and according to law.

Moreover, there is provision for resort to the courts, even by the petitioner, so far as its rights are affected. It is required by § 14 that the amount assessed to each city and town shall be “added to the State tax next thereafter assessed.” It is provided by St. 1919, c. 344, § 4, and a similar provision is found in recent statutes assessing the State tax, that in case of refusal of a city or town to pay the State tax, information may be filed by the Treasurer and Receiver General in the Supreme Judicial Court to enforce payment. Thus there might be a hearing in court as to the validity of the tax in any respect whereby the petitioner is affected and is entitled to be heard.

The assessment was levied in accordance with § 14. It there is provided that “In case the Commonwealth shall be called upon to pay to the trustees . . . any amount under the provisions of sections eleven and thirteen, such amount . . . shall be -assessed ... by an addition to the State tax next thereafter assessed.” It was enough that the demand was made before the State tax statute of 1919 was enacted, although the payment was not made until after its enactment, to warrant addition to the State tax of that year.

It follows that no guaranty of the State or Federal Constitutions has been violated by the said c. 159 in any of the particulars set forth in the petition, or by the conduct of the trustees and the Treasurer and Receiver General thereunder. ,

Petition dismissed.