ASSESSORS OF HAVERHILL vs. NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY.

QUA, C.J. The assessors appeal from a decision of the Appellate Tax Board abating a tax assessed for the year 1951 in the sum of $49,639.44 on the machinery, poles, wires and underground conduits, wires and pipes of the company located in Haverhill. The board ruled that the assessment was invalid.

At the time of the assessment it was provided by G. L. (Ter. Ed.) c. 59, Section 39, as appearing in St. 1933, c. 254, Section 36, and as amended by St. 1939, c. 451, Section 22, [Note p358-1] that local assessors should assess the machinery, poles, wires and underground conduits, wires and pipes of telephone and telegraph companies at a value determined by the commissioner of corporations and taxation and certified by him to the assessors, or in case of appeal by the assessors from the commissioner's valuation, at the value determined by the Appellate Tax Board. Instead of complying with this section, the assessors used a valuation fixed by themselves which was $550,000 greater than that certified to them by the commissioner. They now contend not only that Section 39 was unconstitutional but also that Section 41, as appearing in St. 1933, c. 254, Section 37, [Note p358-2] which provided for returns by the companies to the commissioner

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to enable him to make his valuations, and Section 73, as appearing in St. 1933, c. 254, Section 44, [Note p359-1] which provided that a company aggrieved by the taxes assessed on it might apply to the commissioner for an abatement, were likewise unconstitutional.

These sections, or some of them, have been the subject of a series of decisions in recent years at the instance of the assessors of Springfield and of Haverhill. Commissioner of Corporations & Taxation v. Assessors of Springfield, 329 Mass. 419. Assessors of Springfield v. New England Telephone & Telegraph Co. 330 Mass. 198. Commissioner of Corporations & Taxation v. Assessors of Springfield, 330 Mass. 433. Commissioner of Corporations & Taxation v. Assessors of Haverhill, 330 Mass. 553. State Tax Commission v. Assessors of Haverhill, 331 Mass. 306. State Tax Commission v. Assessors of Springfield, 331 Mass. 677. State Tax Commission v. Assessors of Haverhill, 331 Mass. 685. In the case of Commissioner of Corporations & Taxation v. Assessors of Haverhill, 330 Mass. 553, at page 555, we said that the assessors' attack upon the constitutionality of Section 39 was "without merit." Inasmuch, however, as the present attack is not confined to Section 39 and appears to be pressed upon grounds different from those advanced in the case last cited we consider the arguments here addressed to us.

1. There is no violation of the requirement of Part II, c. 1, Section 1, art. 4, of the Constitution of the Commonwealth that assessments, rates and taxes be proportional and reasonable. The value to be determined by the commissioner [Note p359-2] under Section 39 is the fair cash value of the property. This is implicit in Section 39 and is made explicit by the reference to "fair cash value" in Section 73. The basis of valuation is therefore the same as that upon which the assessors must act under G. L. (Ter. Ed.) c. 59, Section 38, in determining the value of other property in the city. And of course the tax rate must be the same as that applied to other property. Section 39. The only possible ground for the contention that the tax

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assessed upon the company under the statutes in question is not proportional and reasonable is that the value may be finally determined by the commissioner [Note p360-1] upon application for abatement rather than by the assessors or the Appellate Tax Board. But taxes are not rendered disproportionate or unreasonable merely because the values of different types of property may under the law be fixed by different officers whose judgments may differ as to value and as to the best method of determining it. There is no requirement that all valuations for tax purposes be made by a single officer or a single board. Cummings v. Merchants' National Bank, 101 U.S. 153, 160-161. Nashville, Chattanooga & St. Louis Railway v. Browning, 310 U.S. 362. See New York State v. Barker, 179 U.S. 279. There is nothing to show that there is in favor of telephone and telegraph companies "an intentional discrimination and one adopted as a practice." (Chicago Great Western Railway v. Kendall, 266 U.S. 94, 99), even though the commissioner and the assessors may have entertained different views as to the best method of ascertaining value.

2. There is no denial of due process or of equal protection of the laws in the provision of Section 73 granting an appeal to a company aggrieved by the commissioner's [Note p360-2] refusal of an abatement without granting any corresponding appeal to the assessors. Assessors are strictly public officers. Burr v. Boston, 208 Mass. 537, 541. Hobart v. Commissioner of Corporations & Taxation, 311 Mass. 341, 344. It is for the Legislature to say what rights shall be given to them in their official capacities and what rights denied.

3. There is no denial of equal protection of the laws in providing for the property of telephone and telegraph companies described in Section 39 a method of assessment different from that provided for somewhat similar property of other owners, including such other public service companies as electric light and power companies, gas companies, railroads, and street railways. Sufficient ground for valid classification

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is found in the differing nature of the services rendered and of the means employed in rendering them. In recognition of inherent differences these types of public services have been from the beginning governed by differing statutory provisions. The reasons for adoption of the present method of valuing the machinery, poles, wires, conduits, and pipes of telephone and telegraph companies sufficiently appear in Assessors of Springfield v. New England Telephone & Telegraph Co. 330 Mass. 198, 201-203. If these reasons may also have some application to some of the other types of public service companies just mentioned, the Legislature may have felt that they apply in less degree than to telephone and telegraph companies, which we may now be certain extend into every city and town in the Commonwealth. The ramifications of particular gas and electric companies and even of railways may be less extensive. It may be that no acute problem has arisen in connection with these companies. These are matters for the Legislature to consider. Old Colony Railroad v. Assessors of Boston, 309 Mass. 439, 446-450. McQuade v. New York Central Railroad, 320 Mass. 35, 38-39. Western Union Telegraph Co. v. Indiana, 165 U.S. 304. Citizens' Telephone Co. of Grand Rapids v. Fuller, 229 U.S. 322. New York, Philadelphia & Norfolk Telegraph Co. v. Dolan, 265 U.S. 96. See Kentucky Railroad Tax Cases, 115 U.S. 321, 336-339; Michigan Central Railroad v. Powers, 201 U.S. 245; Connolly v. Union Sewer Pipe Co. 184 U.S. 540; Southwestern Oil Co. v. Texas, 217 U.S. 114; Nashville, Chattanooga & St. Louis Railway v. Browning, 310 U.S. 362, 368. Compare Vigeant v. Postal Telegraph Cable Co. 260 Mass. 335.

4. There is no unconstitutional delegation of power to the commissioner. [Note p361-1] Authority finally to fix values must be placed in some officer or board. In Commissioner of Corporations & Taxation v. Assessors of Haverhill, 330 Mass. 553, at page 556, we said, "We see no reason why the power

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to determine valuations for purposes of taxation may not be delegated to the commissioner as well as to the assessors." See also Duffy v. Treasurer & Receiver General, 234 Mass. 42, 47.

5. But there is a further underlying reason why this appeal cannot succeed. No personal or property rights of the assessors are here involved. "It is a general principle that no one can question in the courts the constitutionality of a statute already enacted except one whose rights are impaired thereby." Horton v. Attorney General, 269 Mass. 503, 513. Mullholland v. State Racing Commission, 295 Mass. 286, 292. Morrissey v. State Ballot Law Commission, 312 Mass. 121, 135-136. Landers v. Eastern Racing Association, Inc. 327 Mass. 32, 43. This rule extends to public officers whose private rights are not involved. Smith v. Indiana, 191 U.S. 138, 148-149. Braxton County Court v. West Virginia, 208 U.S. 192, 197. Massachusetts v. Mellon, 262 U.S. 447, 488. Columbus & Greenville Railway v. Miller, 283 U.S. 96, 99-100. In general an administrative officer cannot refuse to proceed in accordance with statutes because he believes them to be unconstitutional. Smith v. Indiana, 191 U.S. 138, 148. He must leave that issue to be raised by the persons who are adversely affected. Smyth v. Titcomb, 31 Maine, 272, 286-287. For collection of cases see 11 Am. Jur., Constitutional Law, Section 117; 129 A. L. R. 941. If there are exceptions to this principle, there is no reason for counting this case among them.

As ordered by the Appellate Tax Board the tax must be abated in the amount of $49,639.44.

So ordered.