Assessors of Springfield v. New England Tel. & Tel. Co.

• Decision Date: 04 May 1953
• Citation: 112 N.E.2d 260,330 Mass. 198
• Parties: ASSESSORS OF SPRINGFIELD v. NEW ENGLAND TEL. & TEL. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 260

112 N.E.2d 260

330 Mass. 198

ASSESSORS OF SPRINGFIELD v. NEW ENGLAND TEL. & TEL. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 1953.

Decided May 4, 1953.

Charles D. Sloan, City Sol., Springfield, for Board of Assessors of Springfield.

Leland Powers, Boston, George N. Hurd, Jr., Milton, for New England Tel. & Tel. Co.

Before QUA, C. J., and LUMMUS WILKINS, WILLIAMS and COUNIHAN, JJ.

QUA, Chief Justice.

The assessors appeal from a decision of a majority of the Appellate Tax Board abating as illegal an assessment made by the assessors for the year 1950 upon machinery, poles, wires and underground conduits, wires and pipes of the company. The ground of illegality is failure to assess in accordance with G.L. (Ter.Ed.) c. 59, § 39, as appearing in St.1933, c. 254, § 36, and as most recently amended by St.1939, c. 451, § 22. The entire section as amended is printed in the footnote. ¹

The facts essential to an understanding of the issue now presented appear in a 'Case Stated' filed with the board and are these: On February 10, 1950, the commissioner of corporations and taxation in accordance with § 39 certified to the assessors the value of the property here involved as $3,265,400. On February 16 the assessors appealed this valuation to the board, which nearly twenty-two months later, on December 13, 1951, determined the value of the property to be $6,382,328. Upon appeal to this court the decision of the board fixing the last mentioned value was reversed and the proceeding in which that value was fixed was ordered dismissed as moot for the reason that any decision of the board would then necessarily come so late that the company would lose the right of appeal to the commissioner secured to it by § 73, which it must exercise not later than December 1, 1950. Commissioner of Corporations & Taxation v. Assessors of Springfield, 329 Mass. 419, 108 N.E.2d 670. In the meantime, however, the assessors, in August, 1950, after the commissioner's valuation had been certified to them and after they had appealed from that valuation to the board but before the board had rendered any decision, assessed the property at a valuation fixed by themselves of $6,293,400, which was not far from twice the value certified by the commissioner. The issue now to be decided is whether this assessment by the assessors in August, 1950, was valid. Upon appeal by the company to the board, the board ordered an abatement in the sum of $283,203, being the amount of the tax assessed.

It is plain that this assessment by the assessors at a valuation determined by themselves was not in accordance with § 39, which provides for an assessment by the assessors 'at the value determined by the commissioner or by the appellate tax board'. But the assessors contend that they were not required to act in conformity with § 39; that their general powers of valuation and assessment of property under § 38 and other sections of c. 39 remained unimpaired notwithstanding the enactment of § 39; that they acted lawfully under their general powers; and that § 39 merely furnished an alternative method of valuation which they were not obliged to adopt and which was permissive only and not mandatory or compulsory.

We are unable to accept the contentions of the assessors.

Section 39 reads, 'The valuation at which the machinery, poles, wires and underground conduits, wires and pipes of all telephone and telegraph companies shall be assessed by the assessors of the respective towns where such property is subject to taxation shall be determined annually by the commissioner, subject to appeal to the appellate tax board * * *.' 'The assessors shall, in the manner provided by law, assess the machinery, poles, wires and underground conduits, wires and pipes of all telephone and telegraph companies as certified and at the value determined by the commissioner or by the appellate tax board * * *,' with a further provision that such assessment shall be deemed full compliance with the oaths of office of the assessors and full performance of their official duty, except for the requirement of giving information to the commissioner under § 40. It is difficult to see how language could have been framed which would more clearly and categorically impose an absolute obligation upon the assessors. Although undoubtedly in some contexts the word shall can be construed as equivalent to may, its usual and correct signification is mandatory. McCarty v. Boyden, 275 Mass. 91, 93, 175 N.E. 292. Opinion of the Justice, 300 Mass. 591, 593, 14 N.E.2d 392, 115 A.L.R 1158. Elmer v. Commissioner of Insurance, 304 Mass. 194, 196, 23 N.E.2d 95. Brennan v. Election Commissioners of Boston, 310 Mass. 784, 786, 39 N.E.2d 636. Jenney v. Assessors of Mattapoisett, 322 Mass. 76, 78, 76 N.E.2d 126. In this instance the context tends to reinforce its mandatory character. If § 39 had been intended to be merely advisory or alternative, leaving it discretionary with the assessors whether or not they would assess in accordance with that section, there would have been no point in granting to the assessors a right to appeal from the commissioner's valuation to the Appellate Tax Board. One does not need an appeal from a decision which he can disregard at pleasure.

An examination of the history of § 39 leads to the same conclusion. That section was originally enacted as St.1915, c. 137, § 1. The tax commissioner in his report for the year ending November 30, 1914, at pages 27-30, had forcefully directed attention to the difficulties involved in the assessing of poles, wires, and underground conduits by local assessors, who in general were unfamiliar with the value of such property, and who were obliged to place values upon fragments of a system which ought to be valued as a whole. He complained that 'There has thus grown up in the various cities and towns of the Commonwealth the greatest inequality in standards of valuation for poles, wires and underground conduits. It has been impossible to establish any proper standard of depreciation or to secure adequate consideration of the factors of disuse and abandonment of property. The companies themselves are put to unnecessary inconvenience, and justly complain of the various standards of valuation adopted by the different cities and towns. They find themselves justly irritated where a line of poles and wires is valued at one basis of value per mile in one town and at quite another basis of value in the adjoining town, whereas the property in the two towns is the same in character, in cost of construction and in general condition.' He strongly recommended the method in use in some other States whereby a State agency valued the system as a whole and certified to the cities and towns the proportion of the...