G. L. c. 59]

permanent provision for the abatement of taxes 11 and consequently the clauses relating to abatement were omitted from the subsequent tax acts. It was further provided in the same statute that all county, town, district, plantation, precinct and parish taxes should be assessed by the local assessors in accordance with the rules contained in the latest tax act,12 and the periodic tax acts were no longer passed annually and no longer in terms referred to the local taxes, but it was not until the Revised Statutes were enacted in 1836 that the general provisions relating to the assessment of taxes were embodied in a statute intended to be permanent. Since that date the periodic tax act, now passed annually, has contained only the assessment and apportionment of the state tax. The county taxes have been imposed by authority of fixed and general laws, but the state, county and town taxes have all been actually assessed by the local assessors in accordance with statutes remaining in force indefinitely until amended or repealed by the legislature and defining with precision what property is taxable and what is exempt and where and to whom taxable property should be assessed. The statutes relating to the assessment of taxes have expanded from a few paragraphs in the Colonial Laws and eleven pages in the Revised Statutes to twenty-three pages in the General Laws as the more complex life of the community required the introduction of greater detail in the directory provisions of the statutes and the development of modern industries made necessary numerous exceptions to the old and simple method of taxing "lands where they lie and persons where they dwell," but the underlying principles have remained unaltered.

There have however been introduced in recent years exceptions to the long established rules which have in some instances effected considerable changes in the application of the tax laws, although the old statutes embodying the underlying principles have never been repealed. Thus the tendency, already noted, to tax tangible personal property at the place at which it was kept rather than at the domicile of the owner culminated in 1918 in the enactment of a statute providing that all tangible personal property, except ships and vessels, should be taxed to the owner in the town where it was situated on the first day of April.

11 St. 1785, c. 50, § 9. 12 St. 1785, c. 50, § 8.

[G. L. c. 59 § 1

The taxation of intangible personal property for obvious reasons did not trouble the colonial lawmakers: 13 but when this class of property came into existence in such quantities as to constitute an important part of the taxable property of the commonwealth, the difficulties inherent in attempting to tax it at its capital value as personal property in the town in which the owner lived led eventually to the removal of this class of property from the jurisdiction of the local assessors, first in 1864 by the enactment of the corporate franchise tax and the exemption of shares in domestic corporations from local taxation, and finally in 1916 by the enactment of the income tax,15 which provided for the taxation of all other forms of taxable intangible property upon its income by the state and exempted all such property from local taxation.

14

These statutes made indeed a radical change in the taxing system of the commonwealth, but to understand their meaning and intent and their relation to the other provisions of the law, the framework of the law of taxation, which has come down to us substantially unaltered for nearly three centuries, must also be appreciated and understood.

The Poll Tax

SECTION 1. In the year nineteen hundred and twenty-four and annually thereafter a poll tax of two dollars shall be assessed on every male inhabitant of the commonwealth above the age of twenty, whether a citizen of the United States or an alien.

Poll taxes were in force in most of the American colonies, and before the Revolution a large proportion of the public revenues was raised by poll taxes. Under modern conditions, however, poll taxes are not considered an equitable form of taxation, and in some states they have been prohibited by constitutional provision. In Massachusetts the poll tax is still in force, but is of less relative importance than formerly.

It was provided in the colonial statutes that a list should be made of all the male persons in each town from sixteen years old and upwards and every such person (except magistrates and

13 The first mention of intangible property in the Massachusetts tax acts is in St. 1694-5 c. 2, in which "money at interest" is specifically included in the subjects of taxation.

14 Chapter 63, infra page 531. 15 Chapter 62, infra page 428.

G. L. c. 59 §1]

elders of churches) should be assessed and rated one shilling and eight pence by the head.' During the colonial period from thirty-five to forty per cent of the total revenues from direct taxation was raised by poll taxes. The annual tax acts of the provincial period required the assessors to assess all ratable male polls above the age of sixteen years at a certain rate the poll, the amount varying from year to year. During the provincial period and in the early tax acts enacted after independence was established it was the general rule to levy one third of the direct taxes upon polls. In the tax acts enacted after 1814 the assessors were required to assess one-sixth of the whole sum to be raised on the polls, provided the tax on each poll did not exceed one dollar and a half, and this provision was retained in the Revised Statutes; but the poll tax was limited to persons from sixteen to seventy years of age. In 1843 the poll tax was further limited to persons from twenty to seventy years of age, but in the following year the exemption of persons over seventy, except paupers and persons under guardianship, was stricken out, and since that time there has been no specific age limit to the assessment of the poll tax; but persons who by reason of age are unable to contribute fully to the public charges are exempt from taxation upon their polls."

5

7

In 1876 it was provided that women who registered as voters should be subject to the poll tax and in 1879 that the whole state and county taxes should be assessed upon the polls to an amount not in excess of one dollar for each tax upon each poll. In 1901 the statute imposing a poll tax upon women voters was repealed, and a uniform poll tax of two dollars upon every male inhabitant above the age of twenty years was established." In 1919, in order to make partial provision for the payment of

1 Anc. Chart., p. 70.

2 For example, in the act of 1715-16 (St. 1715-16, c. 11, §2) the poll tax was five shillings; in the act of 1777-78 (St. 1777-8 c. 13, § 2), the poll tax was twenty shillings.

3 For example. St. 1821, c. 107, § 3; St. 1830 c. 151, § 3.

4 St. 1843, c. 87; Opinion of the Justices, 5 Met. 591, 595 (1843).

5 St. 1844, c. 145.

6 G. L. c. 59, § 5, cl. 18.

7 St. 1876, c. 225, §§ 1, 7.

8 St. 1879. c. 299. § 1.

9 St. 1901, c. 424, § 1. As to the registration of persons liable to the poll tax see supra page 164. As to where poll taxes are assessed see infra page 220.

[G. L. c. 59 § 2 a "bonus" to residents of the commonwealth who served in the

army or navy of the United States during the war with Germany, an additional poll tax of three dollars was imposed for a five year period, making the total poll tax on each person liable thereto five dollars for each year from 1919 to 1923 inclusive.10 Each town was made responsible to the state for three dollars for each person living within its limits liable to the poll tax, whether the tax was collected or not. Persons entitled to receive the bonus, and veterans of the Spanish war and the Philippine insurrection are entitled to have the additional poll tax abated."

It was early held that the polls of aliens may within the intent of the constitution be ratable polls when they were made liable by the legislature to be rated to public taxes.12 It was held in 1842 that the polls of minors who are in the service of a manufacturing corporation and receiving salaries therefrom cannot legally be assessed to such corporation as their "master." " 13 The assessment of half a poll tax upon an individual is, it seems, illegal. A poll tax may be constitutionally levied without notice to the persons assessed, since a notice would be of no advantage to them.15

14

What Property is Subject to Taxation

SECTION 2. All property, real and personal, situated within the commonwealth, and all personal property of the inhabitants of the commonwealth wherever situated, unless expressly exempt, shall be subject to taxation.

Although this section of the General Laws and the two sections immediately following it purport to establish what property is subject to taxation in this commonwealth, no property can be lawfully taxed unless the statutes further define where and to whom it is to be assessed. Accordingly the subsequent sections which purport merely to fix the place of assessment and the person who should be assessed for property made taxable

10 St. 1919, c. 283.

11 St. 1920, c. 608. By St. 1918, c. 49 as amended by St. 1919, c. 9 persons in the army or navy were exempt from the entire poll tax during the war. These statutes were repealed by St. 1921, c. 226.

12 Opinion of the Justices, 7 Mass. 523 (1811).

13 Boston & Sandwich Glass Co. v. Boston, 4 Met. 181 (1842).

14 Southampton v. Easthampton, 8 Pick. 380 (1829).

15 Hagar v. Reclamation District, 111 U. S. 701 (1884).

G. L. c. 59, § 2]

by the previous sections do in fact establish what property is taxable.1 For example, although the statute has stood in substantially its present form for many years and the property of non-residents and of foreign corporations situated within the commonwealth is clearly included within its provisions, until 1903 in the case of foreign corporations and 1909 in the case of non-residents there was no authority for taxing such property in any particular city or town within the commonwealth unless the property was of such a character as to fall within one of the exceptions to the general rule that personal property is assessed in the domicile of its owner, and consequently all other such property escaped taxation in this commonwealth altogether. Legislation enacted in 19093 to a great extent remedied this condition; but it is still true that certain property situated within the commonwealth and not exempted from taxation is not taxable, because no statute declares where and to whom it shall be assessed. Conversely it has been held that property which the statutes declared should be assessed to the owner in a certain place is taxable accordingly, although not included within the provisions of the statute which declared generally what property should be taxable in the commonwealth."

Until 1909 the statutes authorized the taxation of tangible property of inhabitants of this state even if permanently located in another state, but it may be doubted whether in practice much revenue was raised by taxation upon such property.

6

1 G. L. c. 59, § § 9 to 19 inc., infra.

2 Boston Investment Co. v. Boston, 158 Mass. 461 (1893).

3 St. 1909, c. 516, § 2, now G. L. c. 59, § 18, clause first, infra page 239. * See the following cases holding that certain classes of property situated within the commonwealth were not taxable because the statutes in force at the time did not provide where and to whom they were to be assessed. Hoadley v. Essex County Commissioners, 105 Mass. 519 (1870). (The excess of the value of shares in an unincorporated association over the value of the property). Boston Investment Co. v. Boston. 158 Mass. 461 (1893). (Money of a foreign corporation deposited in a national bank in this commonwealth). City National Bank v. Charles Baker Co., 180 Mass. 40 (1901) (Property in the hands of the receiver of an insolvent corporation). Williams v. Boston, 208 Mass. 497 (1911) (The equitable rights of a person holding a contract for the purchase of land who has made partial payment).

So also at the present time money and intangible property of non-residents kept within the commonwealth and used in connection with a business carried on here or otherwise subject to the taxing jurisdiction of this commonwealth (see supra, Part I, §§ 44, 45) is not actually taxed.

5 Leonard v. New Bedford, 16 Gray 292 (1860).

6 Bemis v. Aldermen of Boston, 14 Allen 366 (1867); Spinney v. Lynn, 172 Mass. 464 (1899).