JOHN LARKIN THOMPSON & others vs. CITY OF CHELSEA & others.

CUTTER, J. Seventeen taxable inhabitants of Boston bring this bill for declaratory relief and also under G. L. c. 40, Section 53, against (a) the cities of Boston, Chelsea, and Revere, and the town of Winthrop; (b) Suffolk County; (c) the persons in Boston (the mayor and city council), Chelsea (the aldermen), Revere (the city council), and Winthrop (the selectmen), who serve as county commissioners of Suffolk County in their respective communities (see G. L. c. 34, Section 4); and (d) the collector-treasurer of Boston and Suffolk County. A Superior Court judge sustained the demurrers of Chelsea and its aldermen, of Revere and its city council, and of Winthrop and its selectmen, and reported the case upon the bill of complaint and these demurrers. The bill, after identifying the defendants, alleges facts summarized below.

Since the enactment of St. 1821, c. 109, [Note 1] the costs of administering the county government of Suffolk County

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have been borne wholly by Boston. [Note 2] The present statutory provision governing taxes for Suffolk County expenditures is found in St. 1909, c. 490, Part I, Section 52 (the 1909 statute), which reads, "In . . . Boston all taxes assessed for county or city purposes may be assessed separately as county taxes and as city taxes, or under the name of city taxes only, as the city council shall direct. The city of Chelsea and the towns of Revere and Winthrop shall not be taxed for county purposes." [Note 3]

The further allegations are meager. It is asserted that, because of the 1909 statute, Suffolk County taxes are not apportioned to Chelsea, Revere, and Winthrop in accordance with St. 1963, c. 660, Section 1. This statute provides "a basis of apportionment for state and county taxes for . . .

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[1965], and until another [such basis] is . . . enacted." [Note 4] It is also alleged on information and belief that if the apportionment schedule had been applied in 1969 to Suffolk County, Chelsea, Revere, and Winthrop would have paid in that year more than $1,000,000 in county taxes. This allegation is not admitted by demurrer. See Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26-27. See also Moskow v. Boston Redevelopment Authy. 349 Mass. 553, 563-564. Reference in the bill is made to G. L. c. 35, Section 31, which requires county commissioners to "apportion and assess all county taxes among and upon the several towns according to the latest state valuation, and . . . [to] certify the assessments to the assessors thereof, and prescribe the time of payment." [Note 5] Finally, it is alleged that, because of the exemption of Chelsea, Revere, and Winthrop from the county tax by the 1909 statute, those acting as county commissioners of Suffolk County do not comply with G. L. c. 35, Section 31. Then follow extremely general allegations that the 1909 statute is unconstitutional under the Constitution of the Commonwealth (see Part II, c. 1, Section 1, art. 4, and arts. 1, 10, 11, 12, and 29 of the Declaration of Rights) and under the Fourteenth Amendment to the Constitution of the United States. No specific facts are alleged in support of these general allegations, amounting only to conclusions of law.

1. The demurrers were properly sustained because no adequate basis even for declaratory relief is stated by the very limited and somewhat indefinite allegations of fact

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(cf. Coan v. Assessors of Beverly, 349 Mass. 575, 578) relied on to show the invalidity of the 1909 statute and because of the absence of any clear statement of facts showing a threatened immediate expenditure which would entitle the plaintiffs to relief under G. L. c. 40, Section 53. See Povey v. School Comm. of Medford, 333 Mass. 70, 71-73. See also Leto v. Assessors of Wilmington, 348 Mass. 144, 148-151. Cf. Woods v. Newton, 349 Mass. 373, 378-380; Massachusetts Assn. of Tobacco Distribs. v. State Tax Commn. 354 Mass. 85, 87-88.

The case, however, has been argued fully on the much broader issues sought to be raised by the bill. Because of this and because some discussion of those issues may result in terminating this litigation, we do not confine ourselves to considering whether the bill is demurrable. See Wellesley College v. Attorney Gen. 313 Mass. 722, 731. We assume (without deciding) that the bill, by references to the several statutes already mentioned, may be regarded as alleging: (a) that the taxes of the individual plaintiffs as taxpayers and residents of Boston will be increased by continued application of the 1909 statute to exempt Chelsea, Revere, and Winthrop from county taxes, and (b) that Boston will be forced to pay substantial county expenses which in part would be borne by the three other communities, were it not for the exemption in the 1909 statute. It is apparent from the statutes cited that, because of the 1909 exemption, Chelsea, Revere, and Winthrop do not now pay (and will continue not to pay, while the 1909 statute remains unchanged) any part of so much of Suffolk County's expenses as must be met by the assessment of a county tax.

2. No suggestion is advanced that Chelsea, Revere, and Winthrop are not exempt from county taxes by the terms of the 1909 statute. The plaintiffs' contention is that the exemption of Chelsea, Revere, and Winthrop from any burden of taxes for county purposes is in violation of the Constitution of the Commonwealth and the Constitution of the United States and that "it represents an unreasonable and disproportionate allocation of governmental expense." Chelsea, Revere, and Winthrop argue that the 1909 statute

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"is a proper and reasonable enactment . . . to meet special conditions that prevailed in Suffolk County" when the 1909 statute and its predecessor statutes were enacted. They rely largely upon the circumstances attendant upon the introduction of the statutory exemption and the history of its application, for nearly a century and a half, as justification for the course authorized by the Legislature in the 1909 statute.

By requesting the enactment of St. 1821, c. 109 (see fn. 1), Boston sought (a) to obtain sole and complete control of various aspects of the Suffolk County government, (b) to have certain county legislative powers placed in the new Boston city government (Section 11), (c) to have the treasurer of Boston serve as county treasurer (Section 12), and (d) to give to the new Boston city government the sole power to assess county taxes (Section 13). The consideration for this exclusion of Chelsea from any significant share in county government was the exemption (see fn. 1) of Chelsea (see fn. 2), by Section 1 of St. 1821, c. 109, from all county taxes. The changes in county arrangements (Section 17) were to take effect only upon the acceptance by the voters of Boston of companion legislation making Boston a city. See St. 1821, c. 110, Section 31. It is apparent from an examination of the two 1821 statutes that Chelsea was being deprived of participation in county affairs as part of a single legislative arrangement in which Chelsea was no longer to pay county expenses, Boston was to become a city, and control of county affairs was largely to pass to Boston.

The legislative reasons for this arrangement are not shown by the inadequate allegations of the bill. Every presumption, however, is to be made that a statute is constitutional and that it is based on adequate facts justifying its adoption in the public interest. See Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387, 390-391 ("The burden of overcoming the presumption . . . is not sustained by generalities"); Mile Road Corp. v. Boston, 345 Mass. 379, 382, app. dism. 373 U.S. 541; Commonwealth v. Leis, 355 Mass. 189, 192, 196-198. The Legislature,

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in enacting the 1821 statute and further legislation (fn. 3) in 1831 discussed below, may reasonably have thought that the largest community in the State should be a city; that it should control the county facilities, most of which were (and were likely to be) within its borders, and adapt them to its needs; and that it should pay (as the price of this complete control) the expense of maintaining county facilities, largely in Boston, which would probably increase values of neighboring Boston property. Certainly facilities in Boston would be less convenient for use by Chelsea citizens than by residents of Boston. The exemption also may have come about in part because of legislative recognition that other aspects of the 1821 and 1831 statutes would leave Chelsea largely at the mercy of Boston as to the nature and extent of county expenditures, some of which might be of slight advantage to residents of Chelsea.

The 1831 statute (fn. 3) reaffirmed the essential features of the 1821 arrangement between Boston and Chelsea. Boston gained certain further benefits. Chelsea under this statute (Section 1) was to give to Boston a deed conveying its interest in the county property and also was to relinquish care of such property to Boston. Boston was to be free to apply to the Legislature for changes in the court system without any interference from Chelsea. Chelsea was to be free to ask to be set off from Suffolk County and to be added to another county without interference from Boston. The statute (Section 2) was to remain in effect at least for twenty years (subject to a condition which did not occur) and thereafter until the Legislature should alter it.

The 1821 statute, as already stated, was not to take effect (Section 17) until the voters of Boston accepted the companion legislation (making Boston a city). This was accepted in a special town meeting by the inhabitants of Boston. See St. 1821, c. 110, Section 31. The 1831 statute was to take effect (Section 3) only when Chelsea in town meeting accepted the statute. Cf. Merrick v. Amherst, 12 Allen, 500, 506-508. The arrangements embodied in the 1821 and 1831 statutes thus had many aspects of a legislative contract,

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supported by substantial consideration and accepted by the voters of each community. [Note 6]

Wholly apart from any contract, it cannot be said that the Legislature did not have reasonable basis for providing the exemption in the 1909 statute and its predecessors. The Legislature has broad powers to deal with county property. See Stone v. Charlestown, 114 Mass. 214, 220-221, 224. See also Cambridge v. Commissioner of Pub. Welfare, 357 Mass. 183, 186. It may alter county government, and it has been held (indeed, in relation to the 1909 statute) that the apportionment of county expenses is a legislative (and not a judicial) matter. See Boston v. Chelsea, 212 Mass. 127, 128-131. The Legislature also has broad powers in granting tax exemptions in the execution of proper public purposes. See Opinion of the Justices, 324 Mass. 724, 730-733; Opinion of the Justices, 334 Mass. 760, 763; Opinion of the Justices, 341 Mass. 760, 778-780; Dodge v. Prudential Ins. Co. 343 Mass. 375, 383-386. The breadth of legislative power in making special statutory provisions with respect to Boston (because of its special situation as the largest city in, and capital of, the Commonwealth, subject to special problems) has been recognized. See Opinion of the Justices, 341 Mass. 760, 782-783. Some analogy to the legislative powers here exercised may be found in the legislative power to make special assessments in a specified area for particular projects based upon what is deemed to be the benefit received by that area. See Norwich v. County Commrs. of Hampshire, 13 Pick. 60, 61-63. See also County of Essex v. Newburyport, 254 Mass. 232, 236-239; Massachusetts Bay Transp. Authy. v. Boston Safe Deposit & Trust Co. 348 Mass. 538, 560-563; Nichols, Taxation in Massachusetts (3d ed.) 750-765.

Certainly, we cannot say that the 1909 statute and its predecessors represent an arbitrary and capricious allocation

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of the burden of county costs in complete disregard of principles of equality and proportion. Cf. Cheshire v. County Commrs. of Berkshire, 118 Mass. 386, 388-389; Bettigole v. Assessors of Springfield, 343 Mass. 223, 230-231. On the contrary, with the consent of the communities concerned, the Legislature has acted. No facts alleged are sufficient to present any substantial question (a) that the Legislature, in enacting the exemption in the 1909 statute, did not reasonably take into account all the numerous considerations (property, political, governmental, and economic) affecting the public interest, or (b) that it then exceeded its constitutional powers, or (c) that, by lapse of time and change, the statutory arrangements have become unconstitutional. Cf. Vigeant v. Postal Tel. Cable Co. 260 Mass. 335, 342-344.

We perceive no indication that there has been such restriction of the power of a State Legislature to make reasonable provisions "suitable for local needs and efficient in solving local problems" (see Avery v. Midland County, 390 U.S. 474, 485) as to render the 1909 statute invalid. We think that the plaintiffs have not alleged facts which, if proved, would permit holding that the legislative arrangement denied to them or to Boston the equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States. The Legislature has not been shown to have made any unreasonable classification of communities to bear Suffolk County expenses. See Opinion of the Justices, 341 Mass. 760, 781-782. Cf. Dehydrating Process Co. of Gloucester, Inc. v. Gloucester, 334 Mass. 287, 292-294; Hillsborough v. Cromwell, 326 U.S. 620.

Orders sustaining demurrers affirmed.