Assessors of Boston v. Boston Elevated Ry. Co.

• Decision Date: 06 January 1947
• Citation: 320 Mass. 588,70 N.E.2d 812
• Parties: ASSESSORS OF BOSTON v. BOSTON ELEVATED RY. CO. and twelve companion cases.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

320 Mass. 588

70 N.E.2d 812

ASSESSORS OF BOSTON

v.BOSTON ELEVATED RY. CO. and twelve companion cases.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 6, 1947.

Appeal from Appellate Tax Board.

Proceedings by Boston Elevated Railway Company in 13 separate cases to abate taxes assessed in 1939, 1940 and 1942 by the Board of Assessors of Boston. From decisions of the Appellate Tax Board abating certain of the assessments, Board of Assessors appeals.

Affirmed.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and RONAN, JJ.

J. W. Kelleher, Asst. Corp. Counsel, and W. H. Kerr, both of Boston, for Assessors.

C. W. Mulcahy, J. F. Kelly, and J.J. Maloney, Jr., all of Boston, for Boston Elevated Ry. Co.

RONAN, Justice.

These are thirteen appeals from orders granting abatements to the Boston Elevated Railway Company on account of taxes assessed in 1939, 1940 and 1942 upon various parcels for these years, involving in all six parcels of land which comprised the Dudley Street Terminal, the Sullivan Square Station, the Lincoln Power Station and the three areas used for shops and yards, all of which parcels were taken by eminent domain by the company under St.1894, c. 548, as amended, and St.1907, c. 497, except portions of some of the shop and yard areas purchased by the company, which had authority to take them by eminent domain. The Appellate Tax Board, herein called the board, made detailed findings with respect to the use made by the company of each of these parcels. There were telephone booths, bootblack stands, barber shops, fruit stands, news stands, pay toilets, parcel lockers, vending and weighing machines, and advertising signs and posters at the Dudley Street Terminal and the Sullivan Square Station. Billboards were located upon some of the properties. A small amount of power generated by the company was sold. The revenue received from concessions, rent of buildings sale of power and miscellaneous items varied from 1938 to 1942, inclusive, from .0187 per cent to .0232 per cent of the total revenue from transportation of passengers. The board found that some of these properties were used entirely for railway purposes, that the billboard privileges were merely an incidental use, that the principal and dominant use of the Dudley Street Terminal and the Sullivan Square Station was the transportation of passengers, and that the concessions located at these places were for the benefit and convenience of the traveling public. The dominant use of the power station was for railway purposes, and the sale of power, which represented a very small percentage of the power developed at this station, was merely incidental. The parties stipulated that the value of a store building located under the elevated structure at the Dudley Street Terminal was $20,000, and the assessment of the tax at this value was sustained in the three petitions filed with reference to the Dudley Street Terminal.

The operation of a large transportation system for the carriage of passengers in Boston and its suburbs, by means of electric railways on the public ways, on elevated structures and through tunnels and subways, constitutes a business of a public nature conducted for the accomodation of and in the interest of that portion of the general public to whom the furnishing of such facilities is almost daily a practical necessity, Boston v. Treasurer and Receiver General, 237 Mass. 403, 130 N.E. 390,Opinion of the Justices, 261 Mass. 556, 159 N.E. 70,Boston Elevated R. v. Commonwealth, 310 Mass. 528, 39 N.E.2d 87; and the property of the company which is employed in furnishing such service is devoted to a public use even though there is also an incidental use, similar to that commonly found in depots, airport stations, bus terminals and waiting rooms, for the convenience of the passengers. Emerson v. Milton Academy, 185 Mass. 414, 70 N.E. 442.Collector of Taxes of Milton v. Boston, 278 Mass. 274, 180 N.E. 116, 81 A.L.R. 1515.County of Middlesex v. Waltham, 278 Mass. 514, 180 N.E. 318.Assessors of Boston v. Lamson, 316 Mass. 166, 55 N.E.2d 215, 154 A.L.R. 886.

The law of this Commonwealth is that land appropriated to a public use by the owner, who acquired to might have acquired it by the exercise of eminent domain, is exempt from taxation by the city or town in which it is located in the absence of a statute making it subject to such taxation. This principle and the reasons upon which it rests were clearly set forth in Inhabitants of Worcester v. Western Railroad Corp., 4 Met. c. 564, and have since been frequently and uniformly adopted in a long line of decisions, the most recent of which is Assessors of Boston v. Boston, Revere Beach & Lynn R., 319 Mass. 378, 66 N.E.2d 36. The principle is decisive if applicable to the instant cases.

Before passing to the merits it is necessary to decide the contentions of the assessors that the company was not aggrieved by the refusal of the assessors to grant the abatements and that the board lacked jurisdiction to grant abatements because, as they urge, none of the applications filed by the company requested an abatement on the ground that the property was exempt from taxation. All of these applications were upon forms approved by the commissioner of corporations and taxation and were duly filed with the assessors¹ and, no action having been taken by them, appeals were seasonably taken to the board. They were signed by the company by its vice-president and treasurer. Each stated that the company was aggrieved by the assessment of a real estate tax for a named year upon a parcel of land which was adequately described, and ‘hereby applies for abatement.’ The description in the majority of the applications showed that the parcel was used as a part of the company's transportation system, but such use was not to be so readily understood from the descriptions stated in the rest of the applications. Each application stated the assessed valuation and the owner's valuation in the blank spaces designed for this purpose. None of the applications stated the reasons for seeking an abatement, and no questions asking for the reasons appeared in the forms. It is strongly urged that the statements of the assessed and the owner's valuation showed that an abatement was sought only on the ground that the property had been overvalued by the assessors. Doubtless, the applications were in proper form to request an abatement on this account. These applications, however, are not to be construed as so limited and confined. It was to be reasonably expected that the company would fill in the assessed valuation and its own valuation, as it was virtually invited to do by the manner in which the form was made up. It is not to be assumed that the company would incur whatever risk might arise from its failure to fill in these values on the forms. The company might have stated in the applications that an abatement of the entire tax was sought for the reason that the property was exempt from taxation and then have them approved as to form by the commissioner of corporations and taxation, as was done by the taxpayer in Assessors of Boston v. Boston, Revere Beach & Lynn R., 319 Mass. 378, 66 N.E.2d 36, but we do not think it was required to do so. It was using the proper form for an abatement of the tax. It is not contended here, as it was in Assessors of Brookline v. Prudential Ins. Co., 310 Mass. 300, 38 N.E.2d 145, that the taxpayer had not properly filled out the blanks. No statute has been brought to our attention and we are not aware of any that requires the taxpayer seeking an abatement of a tax wrongfully assessed upon exempt property to specify such a ground in his application. Here was a public service corporation seeking abatement of a tax upon well known terminals, a power house, yards and shops, and it was resorting to a procedure that the assessors must be assumed to know was available to one to secure an abatement of an excessive tax, or an abatement of the entire tax if shown to have been illegally assessed or to have been laid on property not subject to taxation. Welch v. Boston, 211 Mass. 178, 186, 97 N.E. 893;Sears v. Nahant, 221 Mass. 435, 109 N.E. 373;Sullivan v. Ashfield, 227 Mass. 24, 26, 116 N.E. 565;Thayer Academy v. Assessors of Braintree, 232 Mass. 402, 407, 122 N.E. 410;Central National Bank v. Lynn, 259 Mass. 1, 7, 156 N.E. 42;Assessors of Quincy v. Cunningham Foundation, 305 Mass. 411, 26 N.E.2d 335;Assessors of Brookline v. Prudential Ins. Co., 310 Mass. 300, 312, 38 N.E.2d 145. In somewhat analogous cases it has been held that a taxpayer is not estopped to prosecute a proceeding for an abatement of taxes merely because he included in a list filed with the assessors property he claimed was exempt from taxation or should not have been listed. Sears v. Nahant, 221 Mass. 437, 109 N.E. 370.Hamilton Mfg. Co. v. Lowell, 274 Mass. 477, 175 N.E. 73, 74 A.L.R. 1213.Commissioner of Corporations and Taxation v. Ford Motor Co., 308 Mass. 558, 33 N.E.2d 318, 319 A.L.R. 936. We think that the applications were broad enough to permit the company to rest its claims for abatements upon the ground that the properties were exempt from taxation. Milford Water Co. v. Hopkinton, 192 Mass. 491, 78 N.E. 451.

The assessors point to a statement in the opinion of the board that the applications ‘did not set forth claims for exemption,’ but we think that the board did not intend to go beyond the particular finding appearing in its findings of fact which read that ‘The applications did not state specifically that the company claimed exemption.’

The board ruled that the company's land was not expressly exempt from taxation, and it is now urged that the board could not grant abatements because that would be contrary to G.L.(Ter.Ed.) c. 59 § 2, which provides that ‘All property, real and personal, situated within the commonwealth * * * unless expressly exempt, shall be subject to taxation.’ This statute, in so far as now...