Number 7. July 14, 1967

Number 7. July 14, 1967. Honorable Cleo F. Jaillet, Commissioner of Corporations and Taxation Dear Commissioner Jaillet: — You have requested my opinion as to whether under the provisions of G. L. c. 58, §§ 13-17, relating to reim- bursement of municipalities for loss of taxes on land used for public institu- tions, the Commonwealth is required to reimburse for lost taxes the cities and towns in which property of the following tax-exempt educational insti- tutions is located: Southeastern Massachusetts Technological Institute (S.M.T.I.), Lowell Technological Institute of Massachusetts (Lowell Tech), institutions under the Board of Trustees of State Colleges, and institutions under the Massachusetts Board of Regional Community Colleges. It is my opinion that such reimbursement is required. General Laws c. 58, § 1 3, which is the provision that defines the property in respect of which the reimbursement is to be made, states: "In nineteen hundred and fifty-seven, and in every fifth year thereafter, the commission shall, between January first and June first, determine as of January first the fair cash value of all land in every town owned by the commonwealth and used for the purpos- es of a fish hatchery, game preserve or wild life sanctuary, a state military camp ground, the Soldiers' Home in Massachusetts, the Soldiers' Home in Holyoke, a state forest, the University of Mas- sachusetts, or a public institution under the department of correc- tion, the department of education, the department of mental health, the department of public health, the department of public welfare, or the youth service board, and of all land owned by the P.D. 12 45 commonwealth and under the care and control of the department of natural resources or the division of public beaches in the de- partment of public works and used for recreational or conserva- tion purposes. . . ." (Emphasis supplied.) The educational institutions in question are governed by a series of sepa- rate statutes — S.M.T.I., by G. L. c. 75B; Lowell Tech, by G. L. c. 75A; institutions under the Massachusetts Board of Trustees of State Colleges, by G. L. c. 73, §§ 1-18; and institutions under the Massachusetts Board of Re- gional Community Colleges, by G. L. c. 15, §§ 27-39. Each of the forego- ing institutions has a large degree of autonomy, in that its operations are de- termined by a board of trustees. Thus the trustees of S. M.T.I, shall, subject only to . . . general authority in the board of higher education, have all au- thority, responsibility, rights, privileges, powers and duties customarily and traditionally exercised by governing boards of institutions of higher learn- ing." G. L. c. 75B, § 1 . General Laws c. 15, § 19 provides that the trustees of S.M.T.L "shall serve in the department [of education] ." Lowell Tech is "a state institution within the department of education but not under its control and shall be governed solely by [its] board of trustees whose authority, responsibility, rights, privileges, powers and duties . . . shall be the same as those traditionally exercised by governing boards of in- stitutions of higher learning. In exercising such authority . . . and duties, said board shall not in the management of the affairs of the institute be sub- ject to, or superseded in any such authority by, any other state board, bu- reau, department or commission, except the board of higher education. . . ." G. L. c. 75 A, § 1 . General Laws c. 1 5, § 19 provides that the trustees "shall serve in the department [of education) ." The State Colleges are governed by the Board of Trustees of State Col- leges, which is given certain broad powers by G. L. c. 73, §§ 1-17 but does not appear to have the explicit autonomy conferred on the trustees of S.M.T.L and Lowell Tech by the statutes referred to above. Finally, the Board of Regional Community Colleges is "established in the department [of education] , but not subject to its control." G. L. c. 15, § 27. "Each regional community college . . . shall be governed solely by the board of regional community colleges. In exercising the authority, responsibility, powers and duties specifically conferred upon it, the board shall, subject only to general authority in the board of higher education, have all the au- thority, responsibility, rights, privileges, powers and duties customarily and traditionally exercised by governing boards of institutions of higher learn- ing. In exercising such authority, responsibility, powers and duties said board shall not in the management of the affairs of said colleges be subject to, or superseded in any authority by, any other state board, bureau, depart- ment or commission, except the board of higher education. . . ." G. L. c. 15, §28. The Board of Higher Education, to which reference is made in the stat- utes respecting S.M.T.L, Lowell Tech, and the Board of Regional Com- munity Colleges, is established by G. L. c. 15, § 1 A, as amended by § 2 of c. 572 of the Acts of 1965, which provides: "There shall be in the depart- ment [of education] , but not subject to its control, a board of higher education." It is thus clear that the various educational institutions with which we are 46 P.D. 12 here concerned, because of their wide autonomy, are not "under" the De- partment of Education, in the sense of being subject to its direction or con- trol. If that is the meaning of "under" as used in G. L. c. 58, § 13, then it would be my opinion that the various educational institutions would not fall within the scope of that statute, and reimbursement in respect of lost taxes on their property would not be required. After careful consideration, how- ever, I have concluded that "under" was not used in that sense but rather in the sense of "being associated with" or "being in." My reasons for this con- clusion require an examination of the origin and history of the statute. General Laws c. 58, § 13 originated with §§ 1 and 2 of c. 607 of the Acts of 1910 which provided for reimbursement of cities and towns for loss of taxes on "land used for the purposes of a public institution." Public institu- tions were defined as "all institutions subject to the supervision of the state board of insanity, state board of charity or the board of prison commission- ers. . . ." As the result of several amendments in the intervening years, the statute as embodied in the General Laws of 1921 defined the property in respect of which the reimbursement of taxes was to be made as "land . . . owned by the commonwealth and used for the purposes of a public institu- tion under the department of mental diseases, the department of public wel- fare or the department of correction, a fish hatchery or game preserve, a state military camp ground, or a state forest." G. L. (1921 ed.) c. 58, § 13. In the same year, 1921, however, the statute was again amended by describ- ing the subject property simply as "all land in every town owned by the commonwealth and used for the purposes of a public institution, a fish hatchery or game preserve, a state military camp ground, or a state forest." The term "public institution" was, however, not defined nor was there any requirement that it be under any department. With several later amendments not here relevant, the statute remained in this form until 1956 when, by c. 701 of the Acts of that year, the statute was rewritten by eliminating the general reference to land "used for the purpos- es of a public institution" and substituting the reference, now in the statute, to land "used for the purposes of ... a public institution under the depart- ment of correction, the department of education, the department of mental health, or the youth service board. . . ." I do not regard the 1956 amendment as changing the essential character of the "public institution" provision of the 1 92 1 amendment. Rather, the purpose of the 1956 amendment was, in my opinion, simply to clarify the law so as to specify the general classes of public agencies whose property would meet the reimbursement test. I find nothing in the amendment or its purpose or legislative history that indicates that the Legislature intended the right of a city or town to reimbursement for lost taxes to depend on a fine- spun analysis of the extent to which any particular institution was subject to the control of the department in which it was placed. This conclusion finds support in that portion of the 1956 amendment that refers first to "a public institution under the department of correction, the department of education, the department of mental health . . .," and then goes on to include in the class of property eligible for reimbursement of lost taxes "all land owned by the commonwealth and under the care and control of the department of natural resources or the division of public beaches in the department of public works and used for recreational or conservation purposes. . . ." (Emphasis supplied.) The use of the phrase "care and con- P.D. 12 47 trol" is here used with reference to the land itself whereas the phrase ''un- der," when used alone, pertains only to the relationship of the particular in- stitution to the department with which it is connected. That relationship, however, as I have already stated, I do not regard as requiring the presence of an element of control by the department involved.* In reaching the conclusion, I have not overlooked the amendment made by the Legislature in 1960 by c. 593, § 1 of the Acts of that year, whereby the University of Massachusetts was specifically included as an institution in respect of whose real estate the Commonwealth was to make reimbursement for lost taxes. I regard this amendment as only a clarification intended to dispel doubts that the statute apparently presented with respect to the Uni- versity. Further, nothing in this opinion should be regarded as requiring reimbursement contrary to the provisions of G. L. c. 58, § 15 A, relative to land exempt from local taxation at the time of its acquisition by the Com- monwealth. In short, I am of the opinion that the communities where the educational institutions in question are located are, subject to the qualifica- tion stated in the preceding sentence, entitled to reimbursement for lost real estate taxes in respect of their property. Very truly yours, Elliot L. Richardson, Attorney General