Bean & Symonds Co. v. Town of Jaffrey

• Decision Date: 07 March 1922
• Citation: 117 A. 12
• Parties: BEAN & SYMONDS CO. v. TOWN OF JAFFREY.
• Court: New Hampshire Supreme Court

117 A. 12

BEAN & SYMONDS CO.

v. TOWN OF JAFFREY.

Supreme Court of New Hampshire. Cheshire.

March 7, 1922.

Transferred from Superior Court, Cheshire County; Allen, Judge.

Bill for tax abatement by Bean & Symonds Company against Town of Jaffrey. Transferred without ruling. Tax abated.

Bill in equity filed November 20, 1920, for tax abatement, with petition for injunction against the collection of the tax upon which a temporary restraining order was issued January 21, 1921. May 15, 1912, at a special town meeting, the following votes were adopted:

"Voted to exempt from taxation for a term of ten years the stock in trade and mills and machinery which may be erected and installed by the Bean & Symonds Company in Jaffrey.

"Voted to exempt from taxation for a term of ten years the mills and machinery which may be erected and installed by the East Jaffrey Manufacturing Company."

The two votes had reference to the same enterprise; the latter company being formed to finance the plaintiffs. The land on which the mill buildings were erected was conveyed to the plaintiffs by the East Jaffrey Manufacturing Company, who received a mortgage back from them, which has since been paid. After the mill buildings were erected the plaintiffs made substantial additions thereto, installed machinery therein, and have since carried on business as an active concern. Although the title stood in the mortgagees' name during the erection of the buildings, they took no part in their construction. The property was bought and the factory built for the plaintiffs; the mortgagees held the title and erected the factory as trustees for the plaintiffs, and the plaintiffs were the equitable owners of the land from the time the mortgagees acquired title and of the factory from the time it was built.

No tax was assessed against the plaintiff's upon the property for the years 1913-1919, inclusive. In 1920 the tax in dispute was assessed upon the buildings. No notice of the tax was given the plaintiffs by the collector prior to the bringing of this suit, except by mailing to them a pamphlet copy of all the Invoices and taxes of the town for the year. The plaintiffs learned of the assessment not later than November 20, 1920, and forthwith brought this suit.

Before the property was actually assessed, the selectmen notified the plaintiffs of their purpose to make the assessment. The plaintiffs protested against such assessment, and in conference in relation thereto the selectmen informed them of the reason for making it, and told them they would make no abatement. There was no other application for abatement. If formal application had been made, no abatement would have been granted. The plaintiffs reasonably understood that the selectmen had refused to abate the tax. Whether the plaintiffs had filed an inventory was in dispute. If they did not,* such failure was due to mistake and accident. The facts were found by Allen, J., who transferred without ruling the question whether the plaintiffs can maintain the proceeding.

Orville E. Cain, of Keene, and Robert W. Upton, of Concord (Orville E. Cain, of Keene, orally), for plaintiff.

Joseph Madden, of Keene, and Murchie & Murchie, of Concord (Alexander Murchie, of Keene, orally), for defendant.

PARSONS, C. J. The court is without authority to enjoin the collection of a tax. The aggrieved taxpayer's remedy is a petition for abatement under the statute. Rowe v. Hampton, 75 N. H. 479, 76 Atl. 250. The prayer for a temporary injunction should not have been granted.

"Sec. 10. Selectmen, for good cause shown, may abate any tax assessed by them or by their predecessors." P. S. c. 59, § 10.

"Sec. 11. If they neglect or refuse so to abate, any person aggrieved, having complied with the requirements of chapter 57, may, within six months after notice of such tax and not afterward, apply by petition to the superior court in the county, which shall make such order thereon as justice requires." P. S. c. 59, § 11; Laws 1913, c. 67.

It is conceded that under the...