Norton v. City of Boston

Endicott, J.

The plaintiffs seek to restrain the defendants from selling their land for a betterment tax, assessed for the widening of Market Street in Brighton before the annexation of that town to Boston. By the act of annexation, St. 1873, c. 303, | 2, Boston is entitled to receive all uncollected taxes, and is subject to and liable for all the debts and obligations of the town of Brighton. The plaintiffs contend that Brighton had no author ity to assess the tax upon their land, because Market Street was a highway, and that Boston has the right to collect only legal taxes under the act.

Assuming that the tax was illegal as alleged in the bill, there is no lien on the land, and the sale would pass no title ; and if the plaintiffs should pay the betterment, their remedy at law would be complete. It has been repeatedly held that there is no cause to resort to a court of equity, because the plaintiff is put to the inconvenience of paying a tax under protest, and then bringing an action to recover it because illegal. The prompt and immediate payment of taxes for the support of the government is of the first importance, and the right to recover them back, if illegally assessed, is an adequate remedy. It was directly held in Hunnewell v. Charlestown, 106 Mass. 350, that this court had no jurisdiction in equity to restrain the defendant from selling land which it had illegally assessed for a betterment, but the plaintiff must seek his remedy at law. See also Brewer v. Springfield, 97 Mass. 152; Loud v. Charlestown, 99 Mass. 208 ; Whiting v. Mayor & Aldermen of Boston, 106 Mass. 89, 93.

Ho distinction can be made in this case because the authorities of Bostón did not lay the tax which the defendants are attempting to collect. Boston succeeds by the act of annexation to the rights and obligations of Brighton, and the plaintiffs have the same remedy against Boston which they would have had against Brighton, if that town had not been annexed and had endeavored to enforce this tax. Stone v. Charlestown, 114 Mass. 214, 224.

Demurrer sustained, and bill dismissed.