Boston & A.R.R. v. City of Boston

• Decision Date: 03 April 1931
• Citation: 275 Mass. 133,175 N.E. 740
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON & A. R. R. v. CITY OF BOSTON.

275 Mass. 133

175 N.E. 740

BOSTON & A. R. R.

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

April 3, 1931.

Report from Superior Court, Suffolk County; Wilford D. Gray, Judge.

Complaint by the Boston & Albany Railroad by way of appeal from a refusal of the assessors of the City of Boston to abate a tax on real estate. A demurrer to the complaint was overruled, and the case was reported.

Affirmed.

W. L. Parsons, of Boston, for plaintiff.

J. P. Lyons, Asst. Corporation Counsel, of Boston, for defendant.

RUGG, C. J.

This is a complaint by way of appeal from a refusal by the assessors of the defendant to abate a tax assessed as of April 1, 1927, on a single parcel of real estate with the buildings thereon. G. L. c. 59, § 65. It is alleged that the complainant on April 1, 1927, owned fifty-six parcels of taxable real estate situated in six different wards in Boston, and that the assessors for purposes of taxation made separate valuations on each of these parcels; that the tax assessed on the particular parcel in issue was excessive and disproportionate but has been paid under protest, and within the time allowed by law the complainant applied to the assessors for an abatement; that, in the notice issued by the assessors to bring in a true list of all polls and personal estate not exempt from taxation, taxpayers were not required to file any list of real estate and that the complainant did not own or possess any personal estate not exempt from taxation in Boston, but did file with the assessors with its application for abatement a statement intended by it to be a list of the real estate on which the abatement was sought with its estimate of the fair cash value thereof duly verified; that its application and statement intended as a list and estimate were on a printed form furnished by the assessors; that the application for abatement was denied and within the statutory time after notice thereof the present complaint was filed.

The defendant demurred to the complaint on the grounds in substance that the complainant is not entitled to abatement (1) because there is no allegation that a list was filed as required by G. L. c. 59, § 29, and (2) because the allegations show that no proper list of its real estate was filed as required by G. L. c. 59, § 61.

The facts stated in the bill of complaint must be taken as true.

[3] 1. The relevant provisions of section 29 are: ‘Assessors before making an assessment shall give seasonable notice thereof to all persons subject to taxation in their respective towns. Such notice * * * shall require the said persons to bring in to the assessors * * * a true list, containing the items required by the commissioner in the form prescribed by him * * * of all their polls and personal estate not exempt from taxation * * * and may or may not require such list to include their real estate subject to taxation in that town. * * *’ The notice of the assessors did not require that the list include real estate subject to taxation. The complainant had no personal estate not exempt from taxation. As matter of law it had no polls. G. L. c. 59, § 1. It is provided by section 61 that a person shall not have an abatement ‘unless he has brought in to the assessors the list of his estate as required’ by section 29. The words of section 29 do not expressly require the inclusion in the list of personal estate exempt from taxation or of real estate subject to taxation when not so required by the notice of the assessors. They indicate a contrary purpose. The precise question on this branch of the case is whether the complainant, having no personal estate to be listed, and not being required to list its real estate, was nevertheless required by the statute to file a paper stating these facts as a necessary prerequisite to seeking an abatement. Such filing would be not a list of property subject to taxation but the negation of ownership of all such property. It would be an idle form to file such a paper. For reasons of policy the Legislature might require the filing even by taxpayers in the situation of the complainant of a negative statement in the nature of a list touching estate subject to taxation by the use of apt words; but, in the absence of statutory language of unequivocal import, it is not to be presumed that the Legislature intended to require the doing of an act of no practical significance. The words of the statute do not enjoin the filing of such negative statement in the circumstances here disclosed. Plainly the real estate would be properly omitted by the terms of the notice from any list or statement otherwise required to be filed. The taxpayer need file a list only of his personal estate not exempt from taxation. If he has no such property, the implication is that no list is required.

The cases upon which the defendant relies arose under different statutes with respect to dissimilar facts and are not applicable to the case at bar. In Charlestown v. County Commissioners, 101 Mass. 87, there was an interpretation of Gen. St. 1860, c. 11, §§ 22, 46. It thereby was required that the taxpayers bring in lists of all their ‘estates, both real and personal, not exempted from taxation,’ and that no person should have an abatement unless he had filed with the assessors ‘a list subscribed by him of his estate liable to taxation.’ Subsequent to the decision of that case and that of Newburyport v. County Commissioners, 12 Metc. 211, the statute was changed in the important particular that real estate need not be included in the list unless called for by the notice of the assessors. St. 1877, c. 160, § 1, now embodied in G. L. c. 59, § 29. The taxpayer in the Charlestown Case had real estate subject to taxation. It was held that, in order to have abatement on either real or personal estate, the list must be filed. The statute then under consideration was peremptory in terms. It admitted no variations. The present statute is different. The complainant is seeking no abatement of tax on personal estate because none was assessed. It had no personal estate subject to taxation. The question whether, if the complainant had personal estate subject to taxation and had filed no...