Carbone, Inc. v. Kelly

• Decision Date: 28 February 1935
• Citation: 194 N.E. 701,289 Mass. 602
• Parties: CARBONE, Inc., v. KELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

289 Mass. 602

194 N.E. 701

CARBONE, Inc., v. KELLY.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1935

Report from Supreme Judicial Court; Suffolk County.

Petition by Carbone, Incorporated, for a writ of mandamus against Edward T. Kelly, filed in the Supreme Judicial Court for the county of Suffolk and ordered dismissed. On report.

Petition dismissed.

A. L Taylor and E. C. Parks, both of Boston, for petitioner.

J. B. Sullivan, of Boston, for respondent.

QUA Justice.

This is a petition for a writ of mandamus to compel the board of assessors of Boston to issue to the petitioner a certificate under G. L. (Ter. Ed.) c. 59, § 70, to the effect that the tax for the year 1933 has been abated upon premises on Congress street in Boston occupied by the petitioner as a tenant ‘ paying taxes in full on said premises.’ The single justice ordered ‘ that the petition be dismissed as a matter of law and not as a matter of discretion,’ and reported the case.

We assume in favor of the petitioner that it was ‘ A person aggrieved’ and therefor entitled to apply to the assessors for an abatement under G. L. (Ter. Ed.) c. 59, § 59, an amended by St. 1933, c. 266, and that, if an abatement has in fact been granted, it is entitled by means of this proceeding to obtain a certificate thereof from the present assessors under said section 70. The order of the single justice is to be construed as a ruling that as matter of law there was no evidence which would justify the issuance of the writ. It follows that the sole question for decision is whether there is anything in the single justice's findings of subsidiary facts and in the evidence reported which would justify an ultimate finding that the assessors have abated the tax.

The facts and evidence reported, in their aspect most favorable to the petitioner, may be summarized as follows: On December 29, 1933, the petitioner duly filed with the assessors its application for abatement on the usual form provided by the assessors. At that time the members of the board were Neal J. Holland, Henry Daily and Edward T. Kelly. The secretary of the board was Frederick E. Bolton. On the day on which the petition was filed ‘ a hearing was held’ before Holland and Daily. Kelly, who was chairman, was absent. At the conclusion of the hearing, Holland indorsed upon the face of the application the words ‘ Abate 7000 B of A,’ signed his name on one of the lines provided at the bottom of the form for the signatures of the assessors and handed it to Bolton. ‘ B of A’ was used by Holland as an abbreviation for ‘ Board of Assessors.’ Thereafter that portion of the blank from immediately above Holland's signature was filled in with the appropriate figures, and signed by Bolton as secretary. The last paragraph of the application then read as follows: ‘ This application having been considered by the Board of Assessors, it was voted that an abatement of $229.60 (Amount of tax) be allowed upon a valuation of $7000. F. E. Bolton, Secretary. N. J. Holland * * * Assessors of the City of Boston.’ On December 29, 1933, there were two meetings of the board of assessors attended by Holland and Daily, making a majority of the board. Holland presided. In the extended minutes of those meetings there is no reference to the petitioner's application or to any action taken thereon. On the face of the application there is stamped the following: ‘ Assessing Depart. City of Boston Abated Dec 30 1933.’ There was no evidence as to when or by whom this stamp was applied. There is also written at the bottom of the face of the application and at the left of Holland's signature the words ‘ No Bd. Action Bd. Vote Required.’ There was no evidence as to when or by whom these words were written. They were not written by Holland or Daily or Bolton. It was the usual practice for the board of assessors to indicate upon the application what, if any, abatement was granted. Thereafter the seccretary would fill the necessary figures in the blank spaces in the application and sign it. If no abatement was granted, the application was stamped ‘ Denied.’ If an abatement was granted, it would be ‘ posted’ in the record books of the board and various entries would be made by clerks, after which Bolton would sign the certificate which is issued to the taxpayer. Many applications for abatement...