Assessors of Lawrence v. Arlington Mills
| Decision Date | 02 October 1946 |
| Citation | 320 Mass. 272,69 N.E.2d 2 |
| Parties | ASSESSORS OF LAWRENCE v. ARLINGTON MILLS (and six companion cases [1]). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
March 5, 1946.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & SPALDING, JJ.
Value. Mill.
Taxation, Appellate Tax Board: jurisdiction, petition, appeal, exceptions requests and rulings, findings; Real estate tax: assessment mill site. Evidence, Judicial notice. Attorney at Law. Waiver. Supreme Judicial Court, Waiver. Error, Whether error harmful. Words, "Appurtenant.
" A bill of exceptions in the Appellate Tax Board has no standing.
This court took judicial notice of its own files showing that a certain person was an attorney at law. Even if one bringing an appeal from assessors before the Appellate Tax
Board had no authority to practise before the board, his lack of authority was not a ground for dismissal of the appeal by the board where his act of bringing it was not challenged at the time. Questions as to the admission or exclusion of evidence before the Appellate
Tax Board not set forth in a claim of appeal from its decision as required by G. L. (Ter. Ed.) c. 58A, Section 13, as amended, are not open in this court.
A failure by the Appellate Tax Board to find a particular fact in accordance with a request therefor is not a matter of law which can be brought to this court by an appeal under G. L. (Ter. Ed.) c 58A,
Section 13, as amended. A question of law raised by an appeal to this court from a decision by the
Appellate Tax Board under G. L. (Ter. Ed.) c. 58A, Section 13, if not argued in this court, is waived.
In a determination by assessors of the value of a mill site as enhanced by rights to water collected in ponds at a distance and flowing to the mill for use there in processing goods, the cost to the owner of the mill of obtaining such rights was immaterial and need not be considered by the assessors.
A decision by the Appellate Tax Board granting an abatement of a tax assessed for a mill site having certain water rights was reversed and a new hearing ordered where the board erroneously had refused a request by the assessors for a ruling that in valuing the mill site as enhanced by such water rights the assessors "need" not consider "the price paid for . . . water rights . . .," and it did not appear whether the board, in granting the abatement, had considered or disregarded the cost of the acquisition of the water rights.
APPEALS from decisions by the Appellate Tax Board. J. P. Kane, City Solicitor, for the assessors.
J. M. Graham, (A.
Garceau with him,) for the taxpayer.
These seven cases originated in petitions to the assessors for abatement of taxes on real estate. The assessors refused to make any abatement, and the taxpayer appealed to the Appellate Tax Board, which heard the cases under the formal procedure. G. L. (Ter. Ed.) c. 59, Sections 59, 65; c. 58A Sections 6, 7, all as amended. The board granted an abatement, and the assessors appealed to this court. G. L. (Ter. Ed.) c. 58A, Section 13, as it appears in St. 1933, c. 321, Section 7, as amended by St. 1933, c. 350, Section 8, St. 1935, c. 218, Section 1, and St. 1939, c. 366, Section 1. Boston Five Cents Savings Bank v. Assessors of Boston, 317 Mass. 694 .
With a single immaterial exception, the section cited makes such an appeal to this court "the exclusive method of reviewing any action of the board." And such an appeal reaches only questions of law raised before the board and set out separately and particularly in the claim of appeal.
The board refused to dismiss the proceedings before it on the ground, taken by the assessors, that they were brought before the board by a person not entitled to practise before it. We discuss this question on the appeal, disregarding the bill of exceptions filed by the assessors, for a bill of exceptions in the Appellate Tax Board is unknown. We have no occasion to consider the validity of Rule 1 of the Appellate Tax Board so far as it purports to authorize a certified public accountant to practise before it, and to authorize a corporate officer to represent his corporation before the board. Lowell Bar Association v. Loeb, 315 Mass. 176 , 184. The "statement" by which the appeal from the assessors was brought to the board was signed "Arlington Mills by Albert Chamberlain, Treasurer." The files of this court show that he was an attorney at law, and consequently entitled to practise before the board, and we take judicial notice of our own files. Matter of Welansky, 319 Mass. 205 , 210. One O'Brien, who was not an attorney at law, seems to have been merely the agent of the taxpayer to receive service, as provided in G. L. (Ter. Ed.) c. 58A, Section 7, as amended. But if it be assumed that the appeal from the assessors was brought before the board by a person not authorized to practise before it, his act, not having been challenged at the time, would be effective to bring the appeal before the board. Henry L. Sawyer Co. v. Boyajian, 296 Mass. 215 , S.C. 315 Mass. 757 . The subsequent proceedings were conducted for the taxpayer by an attorney at law whose authority is to be presumed. Steffe v. Old Colony Railroad, 156 Mass. 262 , 263, 264. The board was right in entertaining the proceedings, and in refusing to dismiss them.
The assessors contend that the Appellate Tax Board erred in excluding certain evidence offered by the assessors to show that the depreciation for obsolescence claimed by the taxpayer was excessive, and in admitting evidence of the price at which other mills were sold. But no alleged error in the admission or exclusion of evidence was set out in the claim of appeal, as required by G. L. (Ter. Ed.) c. 58A, Section 13, as amended, and consequently none is open in this court. New England Trust Co. v. Assessors of Boston, 308 Mass. 543 .
Some of the errors assigned by the assessors in their claim of appeal consist of the failure of the board, though requested, to find some particular fact stated in a request. General Laws (Ter. Ed.) c. 58A, Section 13, as amended, requires the board to make "findings of fact" and "report thereon" in writing "if so requested by either party within ten days of a decision without findings of fact," and provides that the record on appeal shall include "all requests for rulings of law and findings of fact and the disposition of each by the board." But the appeal to this court raises only "matters of law," and the refusal or failure to find a particular fact as requested can hardly constitute an error of law. Assessors of Boston v. Garland School of Home Making, 296 Mass. 378 , 383. Choate v. Assessors of Boston, 304
Mass. 298, 300.
Commissioner of Corporations & Taxation v. Boston Edison Co. 310 Mass. 674 , 676. De Cordova v. Commissioner of Corporations & Taxation, 314 Mass. 371 , 374. If construed to permit either party to catechize the board as to every fact that he might think material, the statute would impose as intolerable a burden as would the statute requiring findings of material facts in equity if similarly construed. Fields v. Paraskis, 318 Mass. 726 . In a reported case arising under G. L. (Ter. Ed.) c. 58A, Section 13, as amended, we said, "The specifications of error in the refusal of the board to make particular findings of fact have no standing.
" Assessors of Boston v. Lamson, 316 Mass. 166 , 168. In this respect no question of law is before us.
Errors are assigned to the failure of the Appellate Tax Board to make certain requested rulings of law, such as are recognized as proper procedure by G. L. (Ter. Ed.) c. 58A, Section 13, as amended. But with the exception of requested rulings numbered 16, 17, 18 and 24, none of the alleged errors based upon the failure to give requested rulings of law was argued in this court, and consequently all such alleged errors were waived. Rule 2 of the Rules for the Regulation of Practice before the Full Court (1939), 303 Mass. 678 . Commonwealth v. Gale, 317 Mass. 274 , 276. Commonwealth v. Rudnick, 318 Mass. 45 , 62. Reidy v. Crompton & Knowles Loom Works, 318 Mass. 135 , 141. St. George's Church v. Primitive Methodist Church, Eastern Conference, 318 Mass. 723 , 725. Compare Commissioner of Corporations & Taxation v. Chilton Club, 318 Mass. 285 , 287.
The requested rulings numbered 16, 17, 18 and 24 [1] are all founded upon the assumption that in this case the water collected in New Hampshire in ponds owned by the taxpayer and flowing thence through a Massachusetts town to the mill of the taxpayer in Lawrence and there used mainly for "processing" its worsted products and not at all for power, is "appurtenant" to its mill site. We do not understand the word "appurtenant" in these requests to imply that the water rights would pass by a deed of the mill site without being mentioned or referred to in any way. [1] Rather, the word "appurtenant" in these requests means joined with the mill site by necessity or use, so as to create a taxable unit. The cases of Marlborough v. Poorvu, 305 Mass. 124 , Shruhan v. Revere, 298 Mass. 12 , Boston v. Boston Port Development Co. 308 Mass. 72 , 77, Lenox v. Oglesby, 311 Mass. 269 , 271, 272, and Morison v. Assessors of Brookline, 313 Mass. 746, deal with the possibility that several lots of land may constitute a taxable unit. Rights in water power, used or capable of use in connection with a...
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