This is an action under G.L.c. 60, § 98,
Count 1 of the declaration alleges, in part, "that for the year 1958 ... the ... [city], through its board of assessors, pursued a deliberate and intentional policy of fractional or percentage valuations of real estate in Springfield; that such valuations were not made on a uniform basis for all real estate, but that different properties were valued and assessed at widely varying percentages of and under their fair cash value; that assessments in 1958 were based on such fractional or percentage valuations; that the greater portion of the real estate assessments made by the defendant in 1958 were on a nonuniform basis and substantially less than and without regard for their fair cash values; that such ... assessment practices were not in conformity with the laws ... but were in gross and intentional violation of our Constitution and statutes and therefore the entire real estate assessments made and taxes levied thereunder ... in the year 1958 were ... void." Count 1 also alleges that the taxpayer owned on January 1, 1958, specific real estate assessed for $6,600; that there was assessed with respect to this real estate a tax of $444.84 which was paid by the taxpayer "after written protest signed by him"; and that the "assessment and resulting tax levy were for the reasons stated ... void." Counts 2 to 7 purport to incorporate count 1 by reference in seeking recovery of 1958 taxes on other parcels.
1. We assume that the taxpayer by his exceedingly general allegations attempts to raise for decision the question whether the whole assessment of the city for 1958 is void
In Carr v. Assessors of Springfield, 339 Mass. 89, 92-93, somewhat similar allegations were made in a proceeding under G.L.c. 40, § 53, to enjoin the 1958 assessments. In the Carr case (ordered dismissed on April 22, 1959, because by then it had become moot), this court (at pp. 91-92) reviewed earlier decisions stating the statutory duty of the assessors. In Opinion of the Justices, post, 738, 750, we have recently referred to the controlling force of the requirements of the Constitution that property taxation be "proportional" and that each individual (art. 10 of the Declaration of Rights) "contribute his share to the expense" of the government. An intentionally made, widely disproportionate assessment would constitute a gross violation of "a fundamental constitutional limitation upon the power ... to impose property taxes" (see Opinion of the Justices, 324 Mass. 724, 728) and might result also in denial of rights under the equal protection clause of the Fourteenth Amendment, and under G.L.c. 59, § 38.
2. We must determine whether the taxpayer in his declaration
Here it would be reasonable to expect the plaintiff, without improperly stating evidence in his declaration, to make specific allegations of such asserted facts as would, if proved, establish invalid official action, as for example, the precise nature of the lack of uniformity in assessments which he expects to prove and the circumstances indicating that it was intentionally discriminatory, rather than caused by inadvertence, mistake, or incompetence. We think the demurrer was properly sustained because of the inadequacy and indefinite nature of the allegations in the declaration.
It is doubtless for some such reasons that, in the past, efforts to prevent in advance allegedly improper and disproportionate assessments have not been successful. See Amory v. Assessors of Boston, 306 Mass. 354, 357-358 (mandamus held not available, in view of G.L.c. 40, § 53); Amory v. Assessors of Boston, 310 Mass. 199, 203-204 (proceeding under § 53 unavailing in the circumstances). See also Dowling v. Assessors of Boston, 268 Mass. 480, 483-485.
General Laws c. 59, § 59 (as amended through St. 1946, c. 199, § 1), provides for a reasonable abatement if the assessors find that an applicant for abatement is "taxed at more than his just proportion, or upon an assessment of any of his property in excess of its fair cash value" (emphasis supplied). Nevertheless, at least in recent years, even applications for abatement of real estate taxes under § 59 in practice have been dealt with in relation to whether the taxpayer's land is assessed for more than its fair cash value and without regard to whether other property is assessed at its full, fair cash value. See Tremont & Suffolk Mills v. Lowell, 271 Mass. 1, 16; Wynn v. Assessors of Boston, 281 Mass. 245, 248; Amory v. Assessors of Boston, 306 Mass. 354, 357, and cases cited; Nichols, Taxation in Massachusetts (3d ed.) 303-307, 321-323; cf. ibid., 443-454. See also Waltham Watch & Clock Co. v. Waltham, 272 Mass. 396, 412; Revere v. Revere Constr. Co. 285 Mass. 243, 251; Amory v. Assessors of Boston, 310 Mass. 199, 202-203; Boston
There can be little doubt that an assessment may be excessive in a constitutional sense, not because land is assessed at a figure in excess of its fair cash value, but because it is assessed at less than fair cash value while the land of other taxpayers is intentionally assessed at even lower percentages of the full, fair cash value of such land. Such unequal assessments, of course, would make the particular taxpayer pay more than his just proportion of the taxes assessed. Yet to prove that such a tax is excessive requires a scope of inquiry extending far beyond the value and the assessment of the land of one taxpayer. Except upon clear allegation of specific facts showing a widespread scheme of intentional discrimination rather than merely isolated, inadvertent lack of uniformity, such an inquiry should not be required of the Appellate Tax Board or of a court (as contrasted with the assessors who have a broad duty to make proportional assessments of all property in their community).
3. We do not reach the question whether, upon proper allegation and proof of widespread, intentional, nonproportional assessments at levels below fair cash value, to the injury of a taxpayer, that taxpayer may recover under G.L.c. 60, § 98, a tax paid by him, as a void tax, or may receive an abatement by proceeding under c. 59, § 59, and related sections. The facts alleged in this case do not make it necessary to decide whether the illegality of such assessments makes them void.
Order dismissing report affirmed.