[G. L. c. 59, §§ 79-81 inc. and such division has been duly recorded in the registry of deeds, the assessors, at any time before said real estate has been advertised for sale for non-payment of taxes, upon the written request of the owner or mortgagee of any portion thereof, shall apportion said tax, with costs and interest upon the several parcels thereof, in proportion to the value of each, and only the portion of said tax, interest and costs so apportioned upon any such parcel shall continue to be a lien upon it; and the owners or mortgagees shall be liable only for the tax apportioned upon the parcel owned in whole or in part by them respectively.

SECTION 80. Assessors shall send notice of the request for such apportionment and of the time appointed therefor, by mail, to every person interested in said real estate whose address is known to them.

SECTION 81. A person aggrieved by any action of the assessors in making such apportionment may within seven days thereafter appeal in like manner as in case of an overassessment, and the decision upon such appeal shall be final.

Prior to 1878 there was no provision for apportioning a tax upon real estate divided after the assessment, and in such case a re-assessment could not legally be made, as the original assessment would be valid. It was held however that if a reassessment in the nature of an apportionment was requested by the owners of the land and the owners made an express promise to pay the tax thus re-assessed, they could not afterward set up the lack of authority of the assessors to make the re-assessment and could be held on their promise in an action by the collector.1 Since the enactment of the statute relating to apportionment in 18782 persons who request an apportionment are not personally liable for their portion of the tax, as the procedure is wholly statutory and the only method provided by the statute for enforcing such tax is through the lien on the fractional parcel.3 The right to an apportionment of a tax upon real estate subsequently divided does not continue after the lien as to such parts of the real estate as have been alienated has expired.*

1 Burr v. Wilcox, 13 Allen 269 (1866).

2 St. 1878, c. 182. The statute has not been amended since its enactment except by St. 1913, c. 599, § 1, which limited the right to an apportionment to the time before the land was advertised for sale for non-payment of taxes. Previously it could be apportioned any time before the sale took place.

3 Rogers v. Gookin, 198 Mass. 434 (1908).

4 Salisbury Beach Associates v. Assessors of Salisbury, 225 Mass. 399 (1917).

G. L. c. 59, § 82]

Persons who orally request the assessors to apportion a tax and after receiving the bill apply for an abatement of their portion on the sole ground that the tax was too high cannot subsequently in proceedings to enforce payment of the tax as apportioned object to the validity of the apportionment on the ground that their own request was not in writing, or that notice of their request was not given to other persons interested in the land originally assessed."

Assessment Partially Invalid

SECTION 82. If, by reason of an erroneous or illegal assessment or apportionment of taxes, a person is assessed more than his due proportion, the tax and assessment shall be valid except as to the illegal excess.

This statute has no reference to a mere over-assessment of a taxpayer, whether caused by assessing him for property which he does not own or which is not taxable or by overvaluing taxable property which he owns. In such cases the taxpayer has always had his remedy by petition for abatement but has never been permitted to treat the assessment as invalid or illegal, unless he had no property subject to taxation within the city or town and consequently was not within the jurisdiction of the assessors.1 This statute applies to an assessment levied to meet appropriations which include proposed expenditures for purposes for which the town cannot lawfully expend money, or which in some other particular is illegal as to a portion of the amount sought to be levied; and in such cases but for the provisions of this statute the assessment would be wholly invalid.

It was at first held in a case more hotly contested on the merits than on the form of procedure that when an assessment was partially invalid by reason of including an appropriation for a purpose for which the town could not lawfully spend money, a person who was compelled to pay the tax could recover back only that portion of it which represented his share of the illegal appropriation;2 but subsequently the court held that in case of partial invalidity, whether due to the assessment exceeding the amount required to be raised, to the inclusion of Rogers v. Gookin, 198 Mass. 434 (1908).

1 Infra page 400.

2 Torrey v. Millbury, 21 Pick. 64 (1838).

3 Joyner v. School District in Egremont, 3 Cush. 567 (1849).

5

[G. L. c. 59 § 82 items of appropriation for which the town could not lawfully expend money, or to non-compliance with the statutes relating to the apportionment of the state tax, the entire tax might be recovered back. The result of these decisions was that a town might lose the entire tax of a year by reason of illegally appropriating a hundred dollars to celebrate the fourth of July or for some similar trivial irregularity, and by suit brought any time within six years after the tax was paid. To remedy this situation a statute was enacted in 1859 a portion of which appears above. Other portions provided for the re-assessment of taxes erroneously assessed," and limited the time to three months in which an action to recover back taxes might be brought; so that since 1859 there has been little to be gained by picking flaws in proceedings for the assessment of taxes which do not cause substantial injustice.

9

It is perfectly obvious from a study of the causes which led to the passage of the statute in question that it did not change the unit of taxation, or allow recovery in an action at common law in case of over-asssessment. It assumes that the tax of which it speaks would have been void altogether and recovered as a whole but for its enactment, and proceeds to modify that consequence, but does not create a liability which did not previously exist.10

Even before 1859 a taxpayer could not recover from a town his proportionate share of money illegally paid out by the town." The action at common law which could be maintained against a town was based upon a tax for an illegal purpose and not upon illegal payments of money previously lawfully raised by

taxation.

4 Gerry v. Stoneham, 1 Allen 319 (1861).

5 Goodrich v. Lunenburg, 9 Gray 38 (1857); Gerry v. Stoneham, 1 Allen 319 (1861).

6 G. L. c. 59, § 77, supra page 306.

7 G. L. c. 60, § 98, infra page 400.

8 Since 1847 a means has been provided by statute for contesting the expenditure of money by a city or town for an alleged illegal purpose by petition in equity brought by ten taxable inhabitants. G. L. c. 40, § 53, supra page 147.

9 It was said in Cone v. Forest, 126 Mass. 97 (1879), that the statute was probably passed in consequence of the decision in Goodrich v. Lunenburg, 9 Gray 38 (1857).

10 Schwartz v. Boston, 151 Mass. 226 (1890).

11 Withington v. Harvard, 8 Cush. 66 (1851).

G. L. c. 59, §§ 83-85 inc.]

Return by Assessors of Property of Corporations

Locally Taxable

SECTION 83. Assessors shall annually, on or before the first Monday of July, return to the commissioner the names of all domestic and foreign corporations, except banks of issue and deposit, having a capital stock divided into shares, organized for the purposes of business or profit and established in their respective towns or owning real estate therein, and a detailed statement of the works, structures, real estate, machinery, poles, underground conduits, wires and pipes owned by each of said corporations and situated in such town, with the value thereof, on April first preceding, and the amount at which the same is assessed in said town for the then current year. An assessor neglecting to comply with this section shall be punished by a fine of one hundred dollars.

The object of this provision is to assist the commissioner in the assessment of the corporate franchise tax; but the failure of the assessors to make the returns does not affect the validity of the tax. The commissioner, in such case, may ascertain the necessary facts otherwise.1 In the consolidation of the laws of 1921 the provisions as to domestic and foreign corporations were made the same, to accord with the new method of taxing foreign corporations.

Other Returns Required of Assessors

SECTION 84. If the assessors of a town ascertain that the aggregate valuation thereof has been diminished since April first of the preceding year, they shall return with the table of aggregates, or with the books, which they are required by sections forty-seven, fortyeight and forty-nine to deposit in the office of the commissioner, a statement, on oath, of the causes which in their opinion have produced such diminution.

SECTION 85. Assessors shall annually, on or before September first, make a return to the commissioner, in such form as he may prescribe, of the value of property exempted from taxation under clauses twenty-second and twenty-third of section five, together with the amount of taxes which would have been assessed on such property but for said exemption.

1 Commonwealth v. New England Slate and Tile Co., 13 Allen 391 (1866).

[G. L. c. 59, §§ 86, 87 SECTION 86. Assessors shall annually, on or before October first, forward to the commissioner a statement showing the whole. amount of exempted property entered upon the valuation lists of their respective towns in accordance with section fifty-one, and the amount in each class, and stating separately the aggregate amount belonging to each class embraced in clause third of section five, and shall also forward such lists and statements required by section twenty-nine relative to real and personal property exempt from taxation under said clause as have been received by them.

The penalty for failure to comply with section eighty-four is a fine of not more than two hundred dollars.1 No penalty appears to have been provided for failure to comply with sections eighty-five or eighty-six.

Personal Liability of Assessors

SECTION 87. Assessors shall not be responsible for the assessment of a tax assessed by them in pursuance of a vote for that purpose, certified to them by the clerk or other proper officer of a city, town or district, except for the want of integrity and fidelity on their own part.

Until the close of the first quarter of the last century the customary and recognized method of contesting the validity of a tax was to refuse to pay it, and when the collector attempted to enforce payment by distress or imprisonment, to bring an action of trespass against the assessors. This action filled the place now occupied by the action for money had and received against the city or town and was subject to the same restrictions; the action would not lie if the objection to the tax was merely that it was an over-assessment;1 but a partial invalidity of the tax justified an action for the full amount. The action had one advantage over its modern substitute, for the damages were not limited to the amount of the tax and interest but covered all loss to which the plaintiff was put-in case of distress the value of the goods distrained minus any surplus returned to the owner, thus including both the costs of distress 1 See G. L. c. 59, § 94, infra page 319.

1 Dillingham v. Snow, 5 Mass. 547 (1809); Little v. Greenleaf, 7 Mass. 236 (1810).

2 Stetson v. Kempton, 13 Mass. 272 (1816); Libby v. Burnham, 15 Mass. 144 (1818).