is in the public. It is perhaps best classified as one of the many instances in which established custom and general convenience justify the infliction of a trivial burden regardless of the strict letter of the constitution.2

Assessments for the cost of the construction of sidewalks have been justified as an exercise of the police power and it has indeed been a very common practice to assess each owner the entire cost of the sidewalk in front of his premises regardless of benefits; but to take a man's land by eminent domain for a public way and then compel him to construct a sidewalk at his own expense merely because the public would otherwise find the walking muddy seems to be going a little too far to escape unconstitutionality unless the assessment is made under the protection of the limitations which apply to special assessments under the taxing power.

Compulsory joint improvement of land in which several persons have a common interest can only be effected by the assessment of the cost of the work and of the land damages upon the persons benefited, but as has already been explained, such assessment is made under the police power and is not subject to the limitations which control the power of taxation.* It is however to be noted that such an undertaking is wholly for the benefit of the owners affected, and if an assessment of the cost proportioned to the benefits would exceed the actual benefit the improvement would not be attempted at all.

72. Rights of the Owner of Land Assessed

When a public improvement has been established and constructed and a part or the whole of the cost has been assessed upon adjoining land specially benefited by the improvement a serious question may arise if the public authorities subsequently discontinue the improvement or devote the land occupied by it to a different use of a character which is not beneficial to neighboring land. If the purpose for which the land was origi

2 Goddard, Petitioner, 16 Pick. 504 (1835). See G. L. c. 85 §6, infra page 727, authorizing towns to assess upon abutting estates the whole or part of the cost of removing snow from sidewalks. An ordinance requiring street railway companies to sprinkle the streets between and near the rails is a valid exercise of the police power. Pacific Gas etc. Co. v. Sacramento, 251 U. S.

22 (1919).

3 See French v. Barber Asphalt Paving Co., 181 U. S. 324, 363 (1901). 4 Supra § 66, and Lowell v. Boston, 111 Mass. 454, 469 (1873).

nally taken and the benefits assessed was merely colorable, and the assessment in effect a fraud upon the taxpayers, no doubt the courts would furnish some form of redress; but when, after a park has been built and betterments assessed in good faith and the park enjoyed for many years, the public authorities under legislative sanction determine to erect a public building upon the park, the owners of the land assessed have no legal rights in the continuance of the park as an open space which will entitle them to have the erection of the building restrained.1

1 Thayer v. Boston, 206 Fed. Rep. 969 (1913).

PART II

COMMENTARIES ON THE GENERAL LAWS RELATING TO TAXATION.

STATEMENT

SHOWING THE SOURCES FROM WHICH PUBLIC REVENUES ARE RAISED IN MASSACHUSETTS AND THE DISPOSITION MADE OF THESE REVENUES WITH AN

ABSTRACT OF THE TAX LAWS

The taxes authorized by law for state, county and municipal purposes are the following:

(1) Poll tax of two dollars per annum on each male resident of the commonwealth, assessed directly by the cities and towns and retained by them for their own use, except that in determining the valuation of each city and town for the purposes of the state tax, polls are included at one-tenth of a mill each in every one thousand dollars of state tax.

(2) Tax on real estate and tangible personal property, assessed by the cities and towns, each city and town assessing what is required for its own use and for its share of the county and state tax.

(3) Income tax, assessed by the state at the rate of six per cent on the income from certain specified classes of intangible property, three per cent on the excess of gains over losses from the sale of intangible property, one and one-half per cent upon business income and one and one-half per cent upon the income from annuities, the whole amount derived from the income tax in excess of the cost of collection being distributed to the cities and towns. A part is distributed in proportion to the amounts paid by them as salaries for the higher paid school teachers, as an inducement to increasing the salaries of their school teachers, and of the remainder a gradually diminishing part is paid in proportion to the intangibles formerly taxed in each city or town and a gradually increasing part in proportion to the value of the real estate and tangible personal property in each city or town.

(4) Tax on domestic business corporations, an excise tax, assessed by the state, of five dollars per thousand upon the value of the aggregate capital stock in excess of property locally taxed and property that is non-taxable or situated outside the state, and two and onehalf per cent upon the net income derived from business carried on within the state; one-sixth of this tax is retained by the state and the remainder distributed to the cities and towns where the business of the corporations is carried on.

(5) Tax on foreign business corporations doing business in this commonwealth, similar to the tax on domestic business corporations and distributed in the same way.

(6) Tax on insurance companies, an excise tax assessed by the state and based upon the premium income, and in case of life insurance, upon the net value of the policies; retained wholly by the

state.

(7) Tax on savings banks, including savings departments of trust companies, of one-half of one per cent of the average deposits, excepting so much of the deposits as are invested in real estate, mortgages of real estate, tax-exempt bonds and the stock of trust companies; an excise tax assessed and retained wholly by the state.

(8) Tax on national bank stock, a property tax assessed by the cities and towns at the local rate upon the aggregate value of the shares of each bank in the place where it is located and distributed among the cities and towns in accordance with the residence of the stockholders, the portion attributable to stockholders who are non-residents of the state being paid to the state.

(9) Tax on trust companies, an excise tax assessed by the state on the value of the aggregate capital stock of each company, deducting property locally taxed, and distributed to the cities and towns in accordance with the residence of the stockholders, the amount attributable to stockholders who are not residents of the state being retained by the state.

(10) Tax on street railway companies, an excise tax assessed by the state, based upon the value of the aggregate capital stock of each company, deducting property locally taxed, and the whole being distributed to the cities and towns in proportion to the length of the tracks operated by each company in each town.

(11) Tax on railroad, telephone and telegraph companies, an excise tax assessed by the state and based upon the value of the aggregate capital stock of each company, deducting property locally taxed; the portion of the tax attributable to the shares of non-residents being retained by the state and the remainder distributed among all the cities and towns of the state in proportion to the total assessed value of property actually taxed in each city or town.

(12) Tax on gas, electric light and water companies, an excise tax assessed by the state, based upon the aggregate value of the capital stock of each company, deducting property locally taxed; the portion of the tax attributable to the shares of non-residents is retained by the state and the balance distributed to the towns where the business of the corporations is carried on.

(13) Tax on other public service companies, an excise tax assessed by the state and based upon the aggregate value of the capital stock deducting property locally taxed, distributed to the cities and towns in accordance with the residence of the shareholders in the respective companies and the portion of the tax attributable to non-residents being retained by the state.