These two bills in equity present questions about the validity of the proposed 1961 assessment of property taxes in Springfield. They have been argued together.
The Bettigole case is brought by individual, fiduciary, and corporate owners of multi-family dwellings, commercial real estate, and other property in Springfield which it is alleged "will be in 1961 and subsequent years ... deliberately ... over-valued and over-assessed both in relation to other classes of taxable real estate for which assessed valuations have been established at lower percentages of fair cash value and in relation to the general average or ratio of valuations to fair cash value of taxable real estate in" Springfield. It is alleged that the board of assessors (the board) has for many years established assessed valuations for different classes of real estate in the city at widely differing percentages of the full fair cash value of such real estate and plans to do so for 1961. The bill seeks a declaration as to the "lawfulness under the Constitution
The second case (the Herchovitz case) is a bill by sixteen taxable inhabitants under G.L.c. 40, § 53,
Each case was presented in the Superior Court upon a statement of agreed facts, which (apart from paragraphs relating to the procedural aspects of the particular case) is closely similar to the other. Each case was reported without decision upon the pleadings and the statement of agreed facts. The facts are set out below as they appear in the statements of agreed facts.
By August 1, 1961, the board "had determined the sound value [a term used by the board as equivalent to fair cash value] of each parcel of taxable real estate in the [c]ity as of January 1, 1961, and the fair cash value of the personal property owned by each [taxable] person." The board had also classified all parcels of real estate into six categories, set out below, and a majority
"The [b]oard determined assessed valuations for 1960 in substantially the same manner as it intends to use in 1961 and 1962" and the board's "practice of applying varying percentages of sound or fair cash value of different classes of property in arriving at assessed valuations was deliberate and intentional." A table (Annex A), made a part of each statement of agreed facts, is reproduced following this page. It shows, for example, that the fair cash (sound) value of 22,005 parcels of single family residence property was $266,285,568 (col. 3), but that these parcels were assessed at an aggregate of $133,142,792 (col. 5) for only 50% (col. 4) of their fair cash (sound) value. The table indicates that, if all taxable property in the city had been assessed at 100% of fair cash value, these 22,005 parcels would have been subjected to aggregate taxes of $11,223,937 (col. 7) at a tax rate of $42.15 per $1,000 of valuation, whereas they were in fact taxed only $8,601,024 (col. 6) under a tax rate of $64.60. The table also shows that 2,521 parcels of public utility, commercial and industrial properties, assessed at 85% of fair cash value (col. 4), were in fact taxed $9,602,217 (col. 6), whereas, if all taxable property in the city had been assessed at 100% of fair cash value, the aggregate tax on these 2,521 parcels would have been only $7,370,792 (col. 7). This is the most striking comparison revealed by Annex A, and (although this is not done in the statements of agreed facts) its effect can be shown in tabular form (by a simple mathematical calculation from Annex A) as follows: —
ANNEX "A" 1961 (1) (2) (3) (4) (5) Sound % Applied Assessed Class Parcels Value by Board Value 1 Family 22,005 $266,285,568 50% $133,142,792 2 Family 6,980 $ 70,700,535 60% $ 42,420,461 3 Family 1,339 $ 13,770,109 65% $ 8,952,735 4 or more Family 1,177 $ 34,999,607 70% $ 24,500,071 ______ ____________ ____________ Sub-Total 31,501 $385,755,819 $209,016,059 ______ ____________ ____________ Public Utilities, Commercial and Industrial 2,521 $174,870,514 85% $148,641,060 _____ ____________ ____________ Farms, Vacant Land and Other Real Estate 8,089 $ 18,058,125 70% $ 12,642,662 ______ ____________ ____________ Total 42,111 $578,684,458 64% $370,299,781 ====== ============ ============ Personal (bills) Property 5,000 $ 36,893,760 85% $ 31,359,700 ====== ============ ============ Grand Total 47,111 $615,578,218 65.25% $401,659,481 ====== ============ ====== ============ (1) (6) (7) Taxes Taxes based Based on on 100% of Assessments Sound Value Class (at $64.60) (at $42.15) 1 Family $ 8,601,024 $11,223,937 2 Family $ 2,740,361 $ 2,980,028 3 Family $ 578,352 $ 580,410 4 or more Family $ 1,582,703 $ 1,475,233 ___________ ___________ Sub-Total $13,502,440 $16,259,608 ___________ ___________ Public Utilities, Commercial and Industrial $ 9,602,217 $ 7,370,792 ___________ ___________ Farms, Vacant Land and Other Real Estate $ 816,737 $ 761,150 ___________ ___________ Total $23,921,394 $24,391,550 =========== =========== Personal Property $ 2,025,836 $ 1,555,072 =========== =========== Grand Total $25,947,230 $25,946,622 =========== ===========
(A) (B) Approximate percentage Approximate percentage of total fair cash of all property value of all taxable taxes assessed on property non-uniform basis 22,005 single family residence parcels 43% 33% 2,521 public utility, commercial and industrial parcels 28% 37%
It thus appears that 43% of the total fair cash value of taxable property in Springfield is paying only 33% of the property taxes, whereas 28% of the total is paying 37% of the property taxes. The somewhat lesser disparity, produced by the board's assessment method, among various other classes of property is equally susceptible of mathematical demonstration.
By the use of electronic and other machines, the city auditor is able to produce a "valuation card," an assessed value and tax card, and a tax bill for (a) each real estate parcel, and (b) the personal property of each owner. On September 19, 1961, the "valuation cards" based on the sound values of each property had been "completed" by the application of the percentages (already listed) to the fair cash (sound) values as determined by the board for each class of property, and apparently also for each parcel in each category.
On September 20, 1961, the board announced a 1961 tax rate at $64.60 per thousand. The assessed value and tax cards had not then been produced and the tax list had not been submitted to the board and the board had not committed its tax list or warrant to the collector of taxes. We were told at the arguments on November 6, 1961, that the board had not then committed its warrant to the collector and that no tax bills had then been mailed. The board concedes that it "intends for 1961, and if the members ... are in office for 1962, to establish assessed valuations for taxable property ... by applying the foregoing or similar varying percentages to the sound [fair cash] value of such
The plaintiffs are owners of properties within the classes of four and more family residences, commercial and industrial properties, and farms, vacant land and other real estate, listed in detail in annexes to the bills. Because "they own such property ... [each of the plaintiffs will] pay substantially more in taxes for 1961 if the [board's assessing] practice described ... [earlier in this opinion] is followed than if the assessed valuations of all taxable property in ... Springfield were the fair cash value of such property."
The plaintiffs "insist that, in accordance with the [C]onstitution and laws of the Commonwealth, the assessed valuations of all taxable property in ... Springfield should be the fair cash value of such property." A majority of the board insists "upon following ... [the above described] practice ... and have refused to establish assessed valuations ... at the fair cash value of ... property."
"In order not to disrupt the business and affairs of" Springfield, the plaintiffs have agreed to the dissolution of a temporary restraining order entered on September 21, 1961, and that no preliminary injunction issue. This is to be without prejudice to the plaintiffs. The parties, so far as they have power to do so, have agreed that, except as "the case may have been moot at the time the bill [or petition] was filed ... [it] shall not be treated as moot by virtue of any action taken in the assessment and collection of  taxes ... to the extent that the parties may so agree." Although the last quoted clause is ambiguous, the parties join in urging this court not to decide the case on the ground that it is moot as to 1961 or premature as to 1962.
1. These cases continue property tax controversies which have existed in Springfield in recent years. See Carr v. Assessors of Springfield, 339 Mass. 89; Stone v.
Not only do the assessing practices of a majority of the Springfield assessors violate the constitutional mandate, but they run counter to the clear intention of the statutes relating to local assessment of property taxes. General Laws c. 59, § 38, requires the "assessors of each city ... [to] make a fair cash valuation of all the estate, real and personal, subject to taxation therein." See Waltham Watch & Clock Co. v. Waltham, 272 Mass. 396, 412; Carr v. Assessors of Springfield, 339 Mass. 89, 91. See also G.L.c. 59, § 43 (as amended through St. 1948, c. 112, § 1), § 45 (as amended through St. 1948, c. 112, § 2), and § 52, which provides that the assessors shall sign, at the end of the annual valuation list, under the penalties of perjury, a statement "that the real and personal estate contained in said list, and assessed upon each person in said list, is a full and accurate assessment upon all the property of each person, liable to taxation, at its full and fair cash value, according to our best knowledge and belief." General Laws c. 41,
Upon the basis of the foregoing authorities, there can be no doubt that the board's proposed 1961 assessment scheme is a complete, widespread, and fundamental failure to comply with either the constitutional or the statutory requirements for proportional assessment. Accordingly, we must consider whether, in the circumstances, a remedy is available to the plaintiffs.
2. In Dowling v. Assessors of Boston, 268 Mass. 480, 483-486, it was held that a ten taxpayers' petition under G.L.c. 40, § 53, could be maintained to prevent "[d]eviations in essential particulars by the assessors from ... [the] prescribed [statutory] directions, so as to produce material differences in the amounts ... to be demanded of the taxpayer[s]," since the deviations would show that "the assessors... `are about to raise ... money' in a `manner other than that ... in which' the municipality has the legal `right and power to raise ... money.'" In the Dowling case, however, it was concluded (at p. 490) "that the method [there] adopted ... for assessing taxes ... [was] in conformity to the terms of the enabling statutes." Unlike the present cases, no question (see p. 491) was there presented of anything "disproportionate in the proposed tax levy." See for a case where relief was granted under c. 40, § 53, Jenney v. Assessors of Mattapoisett, 322 Mass. 76, 80-81.
In Amory v. Assessors of Boston, 306 Mass. 354, 356-358, it was decided that, in the circumstances, mandamus did not lie to force the assessors to perform their duties correctly in view of the availability of the remedy under c. 40, § 53. In a later case, Amory v. Assessors of Boston, 310 Mass. 199, ten taxpayers sought under c. 40, § 53, to restrain assessors
Carr v. Assessors of Springfield, 339 Mass. 89, was a ten taxpayers' petition similar to that in the second Amory
In Stone v. Springfield, 341 Mass. 246, we held that "because of the inadequacy and indefinite nature of the allegations," it was proper to sustain a demurrer to a declaration in an action (under G.L.c. 60, § 98) to recover taxes paid under protest. We then said (at p. 249) that "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." In the present cases, there is no deficiency, either in pleading or in proof. The extent of the admitted discriminatory action has been established. The agreed facts show "a widespread scheme of intentional discrimination rather than merely isolated, inadvertent lack of uniformity." See the Stone case, supra, at p. 251.
The Dowling case (268 Mass. 480) establishes that equity jurisdiction exists in this type of case. Far more has been shown in the present cases than appeared in the second Amory case (310 Mass. 199) and in the Carr case (339 Mass. 89). We think that the agreed facts in the cases before us require the intervention of a court of equity, not only (a) to protect the plaintiffs from the violation of their constitutional and statutory rights in respect of their own property, but also (b) in the public interest.
The present suits were brought (see Jenney v. Assessors of Mattapoisett, 322 Mass. 76, 81; Sears v. Treasurer & Recr. Gen. 327 Mass. 310, 327) on September 21, 1961, only a few days after a majority of the board had voted (on
The Bettigole case seeks principally declaratory relief under G.L.c. 231A. In the Stone case, 341 Mass. 246, 251-252, we did not pass upon the argument then made in behalf of the city that declaratory relief (rather than the relief under G.L.c. 60, § 98, there sought) was appropriate. General Laws c. 231A, enacted by St. 1945, c. 582, § 1, substantially after the decisions in the two Amory cases, has been held to authorize declaratory relief in a tax case. At least where the plaintiffs show that they themselves will be directly and adversely affected by the imposition of the tax, a declaration may be made whether and to what extent a tax affects the rights of the parties to the particular case. See Meenes v. Goldberg, 331 Mass. 688, 691; Madden v. State Tax Commn. 333 Mass. 734, 736-737; Dehydrating Process Co. of Gloucester, Inc. v. Gloucester, 334 Mass. 287; Squantum Gardens, Inc. v. Assessors of Quincy, 335 Mass. 440, 443; Stow v. Commissioner of Corps. & Taxn. 336 Mass. 337, 339-340. See also Newhall v. Assessors of Brookline, 329 Mass. 100, 102. The situation may be different where the plaintiffs' interests (in contrast to the public interest represented by them as taxpayers under G.L.c. 40, § 53) have not been shown to have been adversely affected by proposed governmental action. Cf. Povey v. School Comm. of Medford, 333 Mass. 70, 71-72; Berry v. Quincy, 334 Mass. 703;
The Bettigole case also seeks injunctive relief. The plaintiffs are entitled to such relief so far as the invalid assessment scheme affects their own properties.
3. The defendants contend that equitable relief should be denied because of the practical difficulties which Springfield will encounter if an injunction issues. We recognize, of course, the inherent difficulties. See Wilson, A New Aid to Equalization in Property Valuation, 40 B.U.L. Rev. 544, 547-549. Indeed, the courts properly are always slow to grant injunctive relief in tax matters of this type except upon a very clear showing of violation of fundamental constitutional or statutory rights. Our decisions in the Amory, Carr, and Stone cases illustrate this natural judicial restraint. Upon the present record, however, the balance of public interest seems to us heavily in favor of granting injunctive relief.
A majority of the Springfield assessors have disregarded the constitutional and statutory principles requiring proportional assessment, specifically pointed out to them as recently as the Carr case in 1959 and the Stone case in 1960. Where every assessment has been made on a wrong basis, the defects in the scheme cannot be cured by the sporadic correction of individual assessments. If abatements or refunds of taxes to the average level of proposed 1961 assessments (65.25% of fair cash value, see Annex A) were to be made with respect to all properties assessed above the average, Springfield would fall far short of raising the necessary 1961 funds. This would be so even after giving full effect to G.L.c. 59, § 82, which we view as designed primarily to permit recovery under G.L.c. 60, § 98, of only the amount in excess of that which the taxpayer would have been bound to pay if correctly assessed. See Cone v. Forest, 126 Mass. 97, 98-100. See also Jenney v. Assessors of Mattapoisett, 322 Mass. 76, 80. Section 82 does not prevent equitable relief. Also after such abatements and refunds, the assessment scheme would still not be proportional for there would still be assessments below the average.
The illegal action of the majority has resulted in litigation and apprehension of confusion. Far greater confusion, as well as injustice to the plaintiffs, will result if equitable relief is not granted. The plaintiffs and others similarly situated could be required to pay 1961 taxes in excess of any valid tax upon them as a condition precedent to any available relief by abatement before the Appellate Tax Board. See G.L.c. 59, § 64 (as amended through St. 1956, c. 544). Their properties would be subject to excessive liens for taxes. See G.L.c. 60, § 37 (as amended through St. 1943, c. 478, § 1). The public considerations are even more important. If the assessment scheme is not enjoined, the inevitable consequence will be a multiplicity of abatement applications and actions under G.L.c. 60, § 98, creating unnecessary work for all concerned as well as congestion in the courts and before the Appellate Tax Board. Because of this congestion and consequent delays, the remedies (to the extent available in such a situation) under G.L.c. 59, §§ 59-65, each as amended, and c. 60, § 98, would be cumbersome, slow, and, as a practical matter, wholly inadequate. See the Stone case, supra, 341 Mass. 246, 250-251.
Fortunately, because of commendable cooperation by the parties, these cases have reached this court for decision very promptly after the board's adoption of the 1961 assessment scheme and before any substantial progress in the annual collection of taxes. We are of opinion that, in the circumstances, the practical and simple method of dealing with the situation is to enjoin execution of the unconstitutional assessment scheme and to declare it to be a nullity. Thus the way will be cleared for a wholly new assessment. See G.L.c. 59, § 23, as amended through St. 1955, c. 202, § 1; § 77, as amended through St. 1945, c. 333. It should be possible to accomplish such a new assessment rapidly through the use of the city auditor's electronic machines.
4. In the Bettigole case (a) a declaration is to be made that the assessment of 1961 taxes against the plaintiffs' properties on the discriminatory percentage basis proposed by a majority of the board is illegal and void under the Constitution and statutes of the Commonwealth, and (b) the assessors and the collector of taxes are to be enjoined from taking any further action to assess, upon the properties of these plaintiffs listed in Annex C attached to the bill in equity, or to collect, any tax based upon such discriminatory percentage basis of assessment. In the Herchovitz case, (a) a declaration is to be made that the scheme for the assessment of 1961 taxes adopted by a majority of the board is wholly illegal and void and (b) an injunction is to issue against the assessors and the collector of taxes enjoining them, respectively, from proceeding further with the assessment and collection of any 1961 taxes upon property in Springfield which are based upon assessed valuations established by applying different percentages of fair cash value to different classes of taxable real estate or personal property.