Boston Mfg. Co. v. Com.

• Decision Date: 29 June 1887
• Citation: 12 N.E. 362,144 Mass. 598
• Parties: BOSTON MANUF'G CO. v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 598

12 N.E. 362

BOSTON MANUF'G CO. v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 29, 1887

COUNSEL

T.L. Livermore and F.P. Fish, for plaintiff or petitioner.

See the provisions of Pub.St. c. 13, §§ 38, 39, 40. Sections 61 and 62 authorize an appeal from the decision of the tax commissioner to the board of appeal, constituted of the treasurer, the auditor, and one member of the governor's council. See, also, sections 64 and 65. The petitioner contends that, inasmuch as there was no excess in the value of its shares over the credit allowed for the local tax, no excise should have been required by the commonwealth. The law imposing this excise on corporations can be upheld as constitutional only under part 2, c. 1, § 1 art. 4, which give the authority "to impose and levy reasonable duties and excises upon any produce, goods, wares merchandise, and commodities whatsoever, brought into produced, manufactured, or being within" the commonwealth. Com. v. Hamilton Manuf'g Co., 12 Allen, 298, 302, 304; Com. v. Cary Imp. Co., 98 Mass. 22. To the same point are the following cases: Oliver v. Washington Mills, 11 Allen, 268; Com. v. New England Slate & Tile Co., 13 Allen, 391; Com. v. Berkshire, etc., Co., 98 Mass. 25; Boston & L.R. Co. v. Com., 100 Mass. 399.

The statute expressly provides that the cash valuation of the shares shall be ascertained from one source only, and that source is the true market value. The statute has erected the public into a tribunal to determine what the value of the shares is; and if its judgment is expressed by purchase at fair sales, like those of the ordinary auction sales of stock in Boston, by which the shares in question in this case were sold, then the price paid by the public is conclusive. The facts present a flagrant case of the arbitrary exercise of power, and the total disregard of the requirements of the statute, and it is one which loudly calls for the enforcement of the law by this court.

"Where the facts are undisputed, and the evidence, with all the inference which a jury can rightly draw from it, does not, as a matter of law, have a tendency to establish a proposition which is essential to the maintenance of the plaintiff's case, it is the duty of the judge to so instruct the jury." Lane v. Old Colony & F.R.R. Co., 14 Gray, 147. This being the law, it cannot be disputed that, if any other tribunal whose duty it is to find a fact makes a finding which is not warranted by any evidence before it, it acts without authority of law. And in this case, as the board of appeal had no evidence before it upon which to base its finding, it acted without authority of law, and the tax in question was consequently illegally assessed; and this makes a case for the interposition of this court under Pub.St. c. 13, §§ 64, 65. It is not clear that this statute did not intend to give a larger remedy than that afforded by certiorari, but the court would in a similar case grant a writ of certiorari to correct a judgment which there was no evidence to support. "Where all the evidence is reported, the inquiry is whether it will justify the finding as a legitimate inference; not whether the finding is against the weight of evidence. It is enough that there is some evidence to justify it." Great Barrington v. County Com'rs, 112 Mass. 218, 224; Farmington, etc., Co. v. County Com'rs, Id. 206.

The question of jurisdiction which was raised in Boston & L.R. Co. v. Com., 100 Mass. 399, does not arise here, because the statute of 1867, under which the petition in that case was brought, in terms granted relief against the exaction of a tax, and did not mention excise, but the statute under which this petition is brought expressly grants relief against the exaction of an excise.

H.N. Shepard, Asst. Atty. Gen., for the Commonwealth.

See Pub.St. c. 13, §§ 39, 62, 64. In this case, as appears by the report, the tax commissioners ascertained otherwise than from the returns by the petitioner the true market value of its shares, and the method adopted by him is right, and within his authority. It is right, since thereby he ascertained the true market value, in distinction from the apparent market value as shown by the sales reported. It is legal, since the statute makes no restriction as to method, but says, in the broadest language, "or otherwise." The petitioner claimed an appeal to the board provided by section 62, and was heard, and thereby has exhausted his remedy, since his evidence sets forth no legal grounds of objection to the action of the commissioners or board, but an alleged error of judgment. The petition should be dismissed with costs.

OPINION

DEVENS, J.

The excise which the petitioner seeks to recover was imposed by virtue of Pub.St. c. 13, § 38. Under the previous acts (St.1864, c. 208; St.1865, c. 283; and St.1867, c. 52) upon which the section in question is founded, this excise has repeatedly been held to be a tax upon the franchises of a corporation, and not upon its property, and thus constitutional. Com. v. Hamilton Manuf'g Co., 12 Allen, 298; Com. v. Cary Imp. Co., 98 Mass. 22; Com. v Berkshire, etc., Co., Id. 25; Manufacturers' Ins. Co. v. Loud, 99 Mass. 146.

The sections of the statute which apply to the petition are as follows: "The tax commissioner shall ascertain, from the returns or otherwise, the true market value of the shares of each corporation, *** and shall estimate therefrom the fair cash valuation of all of said shares constituting its capital stock." Pub.St. c. 13, § 39. Section 62 provides "The treasurer and auditor of the commonwealth, together with one member of the council, *** shall constitute a board of appeal, to which board any party...