Silva v. City of Fall River

798 N.E.2d 297, 59 Mass. App. Ct. 798, 2003 Mass. App. LEXIS 1183
CourtMassachusetts Appeals Court
DecidedNovember 4, 2003
DocketNo. 02-P-166
StatusPublished
Cited by5 cases

This text of 798 N.E.2d 297 (Silva v. City of Fall River) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silva v. City of Fall River, 798 N.E.2d 297, 59 Mass. App. Ct. 798, 2003 Mass. App. LEXIS 1183 (Mass. Ct. App. 2003).

Opinions

Cypher, J.

Paul F. Silva, a licensed funeral director, filed a complaint under G. L. c. 231A against the city of Fall River and its board of health (collectively, Fall River) alleging that the twenty-dollar burial permit fee charged by Fall River is an illegal tax and seeking declaratory judgment, injunctive relief, and damages. The parties filed cross motions for summary judgment and a Superior Court judge entered judgment in favor of Fall River, concluding that the burial permit charge was a valid regulatory fee and not an unlawful tax. Silva appeals. We think that the summary judgment record establishes that the burial permit charge exhibits more characteristics of a tax than of a fee.

[799]*799Standard of review. “ ‘The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.’ Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). For a grant of summary judgment to be upheld, the moving party must establish that there are no genuine issues of material fact, and that the nonmoving party has no reasonable expectation of proving an essential element of its case.” Miller v. Mooney, 431 Mass. 57, 60 (2000).

Background. The parties are in agreement as to the following. Disposition of human remains is a regulated activity. Every dead body of a human being dying within the Commonwealth must be buried, entombed, or cremated within a reasonable period of time after death. G. L. c. 114, § 43M. Such interment requires, among other things, the issuance of a burial permit. G. L. c. 114, § 45. Failure to comply with the relevant laws can result in criminal prosecution. G. L. c. 114, § 43N. See Commonwealth v. Goodrich, 13 Allen 546, 548-549 (1866); Commonwealth v. Gallison, 384 Mass. 184, 185 (1981).

Before a dead body may be interred, a burial permit must be obtained from the local board of health or the town clerk of the town where the person died. G. L. c. 114, § 45.2 To obtain the permit, the applicant must present a valid death certificate,3 ibid., and, in Fall River, pay a twenty-dollar fee.4

Once issued, the burial permit must be presented to the person in charge of the cemetery or crematory where the permit holder [800]*800seeks to dispose of the body. G. L. c. 114, § 47. That person is required to endorse the fact of burial, removal, or cremation on a coupon that accompanies the burial permit. Ibid. The completed coupon is returned to the local board of health issuing the burial permit. Ibid. The statutory scheme serves to ensure the proper disposition of human remains.

On July 1, 1995, Fall River began charging a fee of ten dollars for the burial permit. In 2000, Fall River increased the fee to twenty dollars. The fees are deposited into a general account of the city of Fall River.

Discussion. Under the Massachusetts Constitution, municipalities do not have an independent power of taxation; however, they may impose fees.5 Greater Franklin Developers Assn. v. Franklin, 49 Mass. App. Ct. 500, 502 (2000). “Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on the rights of the entity as proprietor of the instrumentalities used, Opinion of the Justices, 250 Mass. 591, 597 (1924), or regulatory fees (including licensing and inspection fees), founded on the police power to regulate particular businesses or activities, id. at 602.” Emerson College v. Boston, 391 Mass. 415, 424 (1984).6

The disposal of human remains involves the public health [801]*801and implicates the police power. Wyeth v. Board of Health of Cambridge, 200 Mass. 474, 479 (1909). Generally, a license or permit fee is a charge for a privilege granted by the license or permit. 9 McQuillin, Municipal Corporations § 26.32, at 92 (3d ed. 1995). A fee exacted pursuant to a regulatory scheme falling within the police powers of a municipality appears, on the surface, to be a valid regulatory fee. See id. § 26.16, at 45. Whether an exactment falls within the category of a fee or a tax, however, “must be determined by its operation rather than its specially descriptive phrase.” Thomson Elec. Welding Co. v. Commonwealth, 275 Mass. 426, 429 (1931).

To determine whether a government exaction is a fee or a tax, we consider the following factors: (1) a fee is charged in exchange for a governmental service that benefits the party paying the fee in a manner not shared by other members of society; (2) a fee is paid by choice, in that the fee payer has the option of not utilizing the governmental service and thereby avoiding the charge; and (3) the charge is collected not to raise revenues but to compensate the governmental entity providing the service. Emerson College v. Boston, 391 Mass. at 424-425. See National Cable Television Assn. v. United States, 415 U.S. 336, 340-341 (1974).

The burden of proving that the burial permit charge is a tax rather than a fee falls on Silva. Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 201 (1995). The parties appear to agree that on this summary judgment record, there are no material facts in dispute and the matter may be decided as one of law. We apply the factors set forth in Emerson College v. Boston, supra.

1. Particularized service benefitting the party paying the fee. The first consideration is whether the charge is for a “particular governmental service which benefits the party paying the fee in a manner ‘not shared by other members of society.’ ” Emerson [802]*802College v. Boston, 391 Mass. at 424, quoting from National Cable Television Assn. v. United States, supra. In other words, “[flees are legitimate to the extent that the services for which they are imposed are sufficiently particularized as to justify distribution of the costs among a limited group (the ‘users,’ or beneficiaries, of the services), rather than the general public.” Id. at 425. Silva claims that Fall River provides no particularized service for the burial permit fee and that, in the alternative, any service it does provide does not benefit the fee payer in a manner not shared by other members of society.7 Silva points out that, unlike other mandatory city permits, such as building and food permits, where inspections are routinely made, a burial permit requires no particular governmental service before it is issued.

Fall River responds that Silva derives an economic benefit from the regulation of the disposition of human remains. We think it is perhaps more accurate to state that Silva derives an economic benefit from the regulation of the funeral industry, for which he pays separate licensing fees. In any event, Fall River has cited no authority, nor are we aware of any, for characterizing economic benefits incidental to regulation as a “particular governmental service.”

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Bluebook (online)
798 N.E.2d 297, 59 Mass. App. Ct. 798, 2003 Mass. App. LEXIS 1183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-city-of-fall-river-massappct-2003.