Vautier, In re

• Decision Date: 05 February 1960
• Citation: 164 N.E.2d 317,340 Mass. 341
• Parties: In re A. A. VAUTIER, Petitioner.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 317

164 N.E.2d 317

340 Mass. 341

In re A. A. VAUTIER, Petitioner.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 7, 1959.

Decided Feb. 5, 1960.

Henry M. Fuller, Portsmouth, N. H., for petitioner.

Edward J. McCormack, Jr., Atty. Gen. (Richard H. Gens, Asst. Atty. Gen., & Eugene G. Panarese, Chelsea), for respondents.

Before WILKINS, C. J., and SPALDING, COUNIHAN, WHITTEMORE and CUTTER, JJ.

WILKINS, Chief Justice.

The petitioner, a resident of New Hampshire, filed this petition for a writ of habeas corpus, alleging that on April 7, 1959, he was unlawfully imprisoned and restrained of his liberty and held in custody in the Suffolk County jail following his arrest under a warrant of commitment issued by the commissioner of corporations and taxation for failure to pay a tax upon income earned by him at his employment in this Commonwealth. See G.L. c. 62, § 41, as amended through St.1933, c. 350, § 4; c. 60, §§ 29, 34, as amended through St.1947, c. 313. The writ issued on April 13, the day the petition was filed, and the order of notice to show cause was served on the commissioner, the sheriff of Suffolk County, and the deputy jailer of the Suffolk County jail. Nothing entitled a return was made by any one. See G.L. c. 248, §§ 10, 11. The only other papers filed were by the commissioner on April 14. These were a demurrer (on which there was no action and which we disregard) and an 'answer.' ¹ The 'answer' admitted some allegations of the petition, denied others, and neither admitted nor denied still others. In addition the 'answer' contained certain affirmative allegations.

On April 14, the trial judge ordered the petitioner remanded to the custody of the sheriff for production on the following day. On April 15 the trial judge admitted the petitioner to bail and reported the case to this court 'to determine the questions raised by the petitioner as to the constitutionality of the statutes involved and the procedures adopted by the respondent' coommissioner. The report states that the case was heard 'on the petition and the return of the writ.' The same questions were open whether the hearing was had partly on the petition and partly on the return, or wholly on the return. Sims's Case, 7 Cush. 285, 291-293; Chambers' Case, 221 Mass. 178, 180-181, 108 N.E. 1070; Graves's Case, 236 Mass. 493, 499, 128 N.E. 867.

At the hearing the petitioner presented five requests for rulings which were denied. No final disposition was made of the petition.

We assume that the 'answer' could be treated as a return, although not in strict compliance with G.L. c. 248, §§ 10, ² 11. ³ It contained no copy of the warrant, but the cause of the restraint was admitted. There was nothing filed by the sheriff, in whose custody by order of court the petitioner was.

We are constrained to hold that this case is not properly here on report under G.L. c. 231, § 111. As it was tried without jury, there could be no verdict. There was no 'finding of the facts by the court' (which includes a general finding or decision, Scaccia v. Boston Elevated Ry., 317 Mass. 245, 251, 57 N.E.2d 761), nor any 'agreement as to all the material facts,' which in § 111 means a case stated. The case has been partially heard on the merits, but no final decision has been made. The requests were incidental to that hearing. See Zani v. Phandor Co., 281 Mass. 139, 143-144, 183 N.E. 500. Their denial, without a ruling on the matter to which they were incidental, was not an 'interlocutory finding or order' within § 111. See Scaccia v. Boston Elev. Ry., 317 Mass. 245, 248-251, 57 N.E.2d 761; Ex parte Tardiff, 328 Mass. 265, 266, 103 N.E.2d 265. In Gulesian v. Richardson, 306 Mass. 184, 186, 27 N.E.2d 746, it was held that questions of evidence could not be reported after a trial had been commenced and where the defendants' motions for directed verdicts had not been granted, as no foundation had been laid for the report.

Nothing definite appears in the report as to further proceedings in the Superior Court. If the trial judge had jurisdiction under § 111 to report his denial of the requests for rulings, there would be nothing to prevent a resumption of the hearing after a decision by us and the presentation of further requests, the action on which from time to time might become the subject of additional reports and still without any decision on the merits. Such a practice 'would tend to transform this court into an advisory board for the direction of the business of the court below.' See Noble v. City of Boston, 111 Mass. 485, 487. This was never intended by the Legislature.

We are mindful that we are dealing with a prerogative writ for the preservation of freedom. See Chambers' Case, 221 Mass. 178, 181, 108 N.E. 1070. We shall, accordingly, indicate our views on enough of the requests to show that there was nothing improper in 'the procedures adopted by the respondent' commissioner. Wellesley College v. Attorney General, 313 Mass. 722, 731, 49 N.E.2d 220; Massachusetts Charitable Mechanic Ass'n v. Beede, 320 Mass. 601, 609, 70 N.E.2d 825.

The first two requests could not have been granted. The first request in broad sweep sought a ruling that G.L. c. 62, § 5A, is in violation of the Constitution of the Commonwealth and of the Constitution of the United States of America. The second request is somewhat more detailed, but states as a 'generality' that § 5A is in violation of both Constitutions as a denial of the equal protection of the laws to citizens of New Hampshire and is discriminatory. The report states that at the hearing the petitioner conceded that, following the decisions in Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 40 S.Ct. 228, 64 L.Ed. 460, and Shaffer v. Carter, 252 U.S. 37, 40 S.Ct. 221, 64 L.Ed. 445, it is within the power of the Commonwealth to levy a tax upon income acquired here by a nonresident. In his brief he requests us not to rexamine the principles of those cases. This is a waiver under Rule 13 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 698. The judge was entitled to treat each request as a whole. Aste v. Putnam's Hotel Co., 247 Mass. 147, 152, 141 N.E. 666, 31 A.L.R. 149; Squires v. Fraska, 301 Mass. 474, 476-477, 17 N.E.2d 693; Ferguson v. Ashkenazy, 307 Mass. 197, 203, 29 N.E.2d 828. We, accordingly, shall not discuss the denial of the requests as applied to the Constitution of the Commonwealth. The petitioner's fundamental rights are not foreclosed. He has been set at liberty on bail. We were told at the arguments that the merits of the tax controversy are to come before us in another proceeding. See G.L. c. 62, § 43, as amended through St.1959, c. 17, § 2; G.L. c. 62, § 45, as amended through St.1958, c. 523, § 2, which is the usual method provided for testing the validity of an income tax by application to the State tax commission with a right of appeal to the Appellate Tax Board.

The third request is 'That the provisions of chapter 60, sections 24, 29, 34, 34A and 35 of said General Laws were as a matter of law never intended to apply to the citizen of a sovereign sister state, and that the arrest and imprisonment of a citizen of such sister sovereign state under said provisions are unlawful.'

Article 44 of the Amendments to the Constitution confers upon the Legislature full power and authority to impose and levy a tax on income. Pursuant thereto, G.L. c. 62, § 5A, inserted by St.1955, c. 780, § 1, imposes a tax upon 'Income received or earned within the commonwealth, during the preceding calendar year, by any natural person not an inhabitant, resident or citizen of the commonweath * * *.' General Laws c. 62, § 41, contains the provision: 'The commissioner [of corporations and taxation] shall have for the collection of taxes assessed under this chapter all the remedies provided by chapter sixty for the collection of taxes on personal estate by collectors of taxes of towns, except that any warrant for the collection of a tax assessed under this chapter may be issued to any sheriff, deputy sheriff or...