53

[G. L. c. 60, § 98 act not involving the exercise of discretion, at the instance of a person having no other available remedy. Consequently mandamus is not the proper means to compel either the assessors or the county commissioners to abate a tax,54 for abatement is a judicial act. A person aggrieved by the decision of the assessors has his statutory right of appeal, and if the county commissioners commit an error of law a person aggrieved may have their proceedings reviewed on writ of certiorari. Mandamus. will however lie to compel a board of assessors or county commissioners to render a decision within a reasonable time upon a petition for abatement which has been heard by them. Mandamus will not lie to compel a collector to receive a tax which the assessors have abated;55 for if the assessors act within their jurisdiction the collector has no power to disregard their actions. Mandamus will not be issued at the instance of a taxpayer to prevent the illegal expenditure of public money,56 for the proper remedy is the petition of ten taxpayers provided by statute.

In certain parts of the United States, occasions have arisen for the issuance of a writ of mandamus to compel the assessment of a tax. A city or town has sometimes refused to pay its debts and judgment creditors have been unable to satisfy their executions. The proper officers of the city or town with full power to levy and collect taxes have refused to raise money for the benefit of the creditors of the municipality, and in such cases a writ of mandamus has issued, generally from a federal court, to compel the officers to perform their duty.57 Even then however if the officer resigns his office before he can be served with the writ and no successor is appointed the effort fails, and the creditors are obliged to resort to a court of equity, which will proceed to collect the tax through its own officials.58

In this commonwealth an execution against a city or town can be satisfied out of the property of any of the inhabitants,59

53 Sears v. Assessors of Nahant, 208 Mass. 208 (1911).

54 Gibbs v. Hampden County Commissioners, 19 Pick. 298 (1837).

55 Gordon v. Sanderson, 165 Mass. 375 (1896).

56 Finlay v. Boston, 196 Mass. 267 (1907).

57 Thompson v. Allen County, 115 U. S. 550 (1885); Hubert v. New Orleans, 215 U. S. 170 (1909).

58 Welch v. St. Genevieve, 1 Dill. (U. S.) 130 (1871).

59 3 Dane Ab. 158; Hawkes v. Kennebeck, 7 Mass. 461, 463 (1811); Brewer v. New Gloucester, 14 Mass. 216 (1817); Merchants Bank v. Cook, 4 Pick. 405, 414 (1826); Chase v. Merrimack Bank, 19 Pick. 564, 569 (1837); Gaskill v. Dudley, 6 Met. 546 (1843); Hill v. Boston, 122 Mass. 344, 350 (1877).

G. L. c. 60, § 98]

and there is no occasion for a judgment creditor to seek to compel the assessors to levy a tax to meet his claim. Moreover, there is ample provision for the assessment of local taxes by the county authorities if a town refuses to elect assessors or the assessors elected refuse to assess a tax.

When a taxpayer seeks to contest the constitutionality of a method of distributing among the cities and towns of a state. the proceeds of a tax collected by the state authorities, or to question whether the distribution is being conducted in accordance with the provisions of statute, none of the ordinary methods are available, since in such case the taxpayer is not attempting to have his tax abated, or any part of it returned to him, and in such case it would seem that mandamus is the appropriate remedy, in order to prevent a failure of justice. Cases have been decided in which such questions were raised by petition for writ of mandamus, but the court has never directly determined whether the procedure was appropriate.

60

Other remedies for excessive or illegal taxes are discussed elsewhere in this work.81

60 Duffy v. Treasurer & Receiver General, 234 Mass. 42 (1919); Dane v. Treasurer & Receiver General, 236 Mass. 280 (1920); Dane v. Treasurer & Receiver General, 237 Mass. 50 (1921); Knights v. Treasurer & Receiver General, 237 Mass. 493 (1921).

61 Ten taxpayers' petition to restrain taxation for an illegal purpose, G. L. c. 40, § 53, supra page 147. Taxpayer's petition to enforce tax limit, G. L. c. 44, § 59. Repayment of illegal corporation or inheritance taxes, G. L. c. 58, § 27, supra page 181. Abatement of excessive taxes and appeals to county commissioners or superior court, G. L. c. 59, §§ 59 to 74 inc., supra page 285. Appeal from apportionment of tax on real estate subsequently divided, G. L. c. 59, § 81, supra page 309. Action to recover tax illegal in part, G. L. c. 59. § 82, supra page 311. Action against assessors for illegal assessment, G. L. c. 59, § 87, supra page 313. Action against collector for unlawful arrest, G. L. c. 60, § 29, supra page 338. Action to recover amount paid if tax title is defective, G. L. c. 60, § 46, supra page 360. Writ of entry to recover land illegally held under tax title, G. L. c. 60, § 62, supra page 374. Answer in proceedings to foreclose tax title, G. L. c. 60, § 70, supra page 381. Bill in equity to redeem from tax sale, or to remove cloud from title G. L. a 60, § 76, supra page 383. Action against collector for unlawful acts, G. L. c. 60, § 95, supra page 396. Abatement of excessive income tax, G. L. c. 62, § § 43 to 48 inc., infra page 494. Abatement of excessive corporation tax, and appeal, G. L. c. 63, §§ 51, 71, infra pages 573, 593. Relief from unlawful corporation tax. G. L. c. 63, § § 77, 78, infra page 596. Refunding of loss by stamps on stock transfers erroneously affixed, G. L. c. 64, § 6, infra page 604. Application for appraisal of property for purposes of inheritance tax, G. L. c. 65, §§ 25, 26, infra page 649. Petition to probate court to determine amount of inheritance tax, G. L. c. 65, § 30, infra page 654. Petition for abatement of excessive betterment assessment, G. L. c. 80, §§ 5 to 10 inc., infra pages 692 to 697 inc.

Penalties

[G. L. c. 60, § 99-105 inc.

SECTION 99. A collector who neglects or refuses to exhibit accounts or to produce receipts, as required under section ninety-four, shall forfeit to the town two and one half per cent of the sums committed to him for collection.

SECTION 100. Violation by a collector, former collector, or an executor or administrator of a collector or former collector, of any provision of sections nine to twelve, inclusive, shall be punished by a fine of not more than five hundred dollars.

SECTION 101. Violation of section twelve by a person of whom demand is made thereunder shall be punished by a fine of not more than five hundred dollars.

SECTION 102. Violation by a collector of section two or section eight shall be punished by a fine of not less than three hundred dollars.

SECTION 103. Whoever refuses or neglects to aid a collector when required under section thirty-three shall forfeit not more than ten dollars.

SECTION 104. Violation by a collector, or by a holder of a tax title, of the last paragraph of section sixty-two, shall be punished by a fine of not more than one hundred dollars.

A holder of a tax title who knowingly collects or attempts to collect for the redemption of the land a larger amount than is authorized by law is not only subjected to a penalty by section one hundred and four, but his violation of the law may operate to extend the time allowed for redemption.1

Forms in Proceedings for Collection of Taxes

SECTION 105. The following forms may be used in proceedings for the collection of taxes under this chapter, and, if substantially followed, they shall be deemed sufficient for the proceedings to which they respectively relate; but other suitable forms may also be used. These forms may also be used, so far as applicable, in the collection of betterments and other assessments of like character.

per

Payment of the same is hereby demanded. Interest at the rate of

1 Davidson v. Stafford, 210 Mass. 145 (1911).

G. L. c. 60, § 105]

cent per annum will be charged from

19. You are hereby notified that unless your tax is paid in fourteen days from this date, with legal interest and charges, and twenty-five cents for this demand, the collector will then proceed to collect the same according to law.

To.....

Collector of Taxes for the

No. 2. FORM OF SUMMONS UNDER SECTION 18.

B,

of

, 19.

Your tax for the year 19 amounting to $ and interest thereon, is now due. You are required to pay the same within ten days from this date with twenty cents for this summons. At the expiration of that time, if the tax is not paid, the collector will proceed to collect the same according to law.

No. 3. FORM OF NOTICE OF SALE OF DISTRAINED PROPERTY UNDER SECTION 25. COLLECTOR'S SALE.

Distrained upon a warrant of distress for non-payment of taxes, and will be

sold by public auction on

19

at

o'clock

the

M.,

at

day of

unless said taxes, interest and charges shall be paid before the sale, the following described property, to wit: [Here describe the property.]

No. 4. FORM OF NOTICE OF ADJOURNMENT OF SALE UNDER SECTION 26. [To the original notice of sale, or a copy thereof, add the following, and post at the place of sale:]

The collector hereby gives notice that the above 'sale stands adjourned to 19 at the same hour and

No. 5. FORM OF CERTIFICATE REQUIRED BY SECTION 30 TO BE GIVEN WHEN A COM

remains unpaid for fourteen days after demand therefor made by me (or the collector of taxes of the town of B) and still remains unpaid; and that for want of goods and chattels whereof to make distress I commit the said person tc jail.

I also certify that the amount the said person is to pay for said tax, interest, charges, fees, and traveling expenses as provided by statute, is

dollars.

Collector of Taxes for the

of

(Or other authorized officer, as the case may be.)

[G. L. c. 60, § 105 No, 6. FORM OF COLLECTOR'S WARRANT TO DISTRAIN OR COMMIT UNDER SECTION 34. COMMONWEALTH OF MASSACHUSETTS.

To the Sheriffs of our several Counties, or their Deputies, or to any Constable of or Deputy Collector of Taxes for the

County of

of

in the GREETING:

in the County of

was duly assessed as of the first day of April in the year nineteen hundred and by the Assessors of the of

the sum of

a tax in

dollars; and the same now, after the expiration of fourteen days from the date of a demand made upon him by me in accordance with law for the payment of the same, remains unpaid; Therefore,

In the name of the Commonwealth of Massachusetts, you and each of you are required and directed to distrain the goods or chattels of the said person so assessed sufficient to satisfy and pay the amount due for such tax and interest, and all fees and charges of keeping and selling the same, saving and excepting the tools or implements necesssary for the trade or occupation of the said person so assessed; beasts of the plough necessary for the cultivation of his improved land; military arms, uniforms and equipment; utensils for housekeeping necessary for upholding life; and bedding and apparel necessary for the said person so assessed and his family. And the goods and chattels so distrained by you, you are required to keep at the cost and charge of the owner for four days at least and within seven days after the seizure to sell the same at public auction, for the payment of the said amount due, having first posted up a notice of the sale in some public place in the city or town where found, forty-eight hours at least before the sale: provided, however, that you may, if you shall see fit, once adjourn said sale for a time not exceeding three days, in which case you shall forthwith post up a notice of such adjournment and of the time and place of sale. And if said distress shall be sold for more than the said amount due you shall return the surplus to, the owner of such goods or chattels upon demand, with an account in writing of the sale and charges. And if you cannot find sufficient goods and chattels belonging to the person assessed, whereon to make distress, you shall take the body of the said person and him commit to one of the common jails in the county in which you shall arrest him, there to remain until he shall pay said tax, interest, charges, and fees, and for an arrest, one dollar and actual traveling expenses incurred in making such arrest; or until he shall be discharged therefrom by due course of law: provided, however, that you may at your discretion, after the service of this Warrant, allow such person to go free for a period not exceeding fourteen days after said service, at which time if said person does not pay his tax with all fees and charges due thereon including one dollar for service of this Warrant and five cents for each mile traveled by you in the performance of this collection you shall then arrest said person on this Warrant and commit him to jail as aforesaid. But if you shall commit such person for the non-payment of a poll tax only he shall not be detained in jail more than seven days..

And in case you shall commit said person so assessed to jail by virtue of this Warrant, you are required to give the keeper of the jail wherein he may be committed an attested copy of this Warrant, with a certificate thereon under your hand, setting forth that for want of goods and chattels of the said person whereof to make distress, you have taken his body and committed him to jail as aforesaid; and also setting forth the amount said person is to pay as his tax, interest, charges, fees and traveling expenses as provided by statute. Hereof fail not, and make return of this Warrant, with your doings thereon, within sixty days from the date hereof.

Given under my hand and seal this

day of

19

[SEAL.]