Commissioner of Corporations & Taxation v. City of Malden

• Decision Date: 03 April 1951
• Citation: 98 N.E.2d 277,327 Mass. 271
• Parties: COMMISSIONER OF CORPORATIONS & TAXATION v. CITY OF MALDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 277

98 N.E.2d 277

327 Mass. 271

COMMISSIONER OF CORPORATIONS & TAXATION v. CITY OF MALDEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1951.

Decided April 3, 1951.

Francis E. Kelly, Atty. Gen. (C. H. Walters, Asst. Atty. Gen. with him), for Commissioner.

B. Kaplan, City Solicitor, Malden, for the City of Malden.

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

QUA, Chief Justice.

The commissioner appeals under G.L. (Ter.Ed.) c. 58A, § 13, as most recently amended by St. 1939, c. 366, § 1, from a decision of the Appellate Tax Board holding that in the distribution of the corporate franchise tax assessed upon Malden Electric Company for the year 1948 the city was entitled to receive the sum of $29,485.45 in addition to the sum previously determined by the commissioner to be due to the city. See G.L. (Ter.Ed.) c. 63, § 58; c. 58, § 24, as amended by St. 1933, c. 254, § 23; and c. 58, § 25, as appearing in St. 1945, c. 687.

1. The commissioner filed before the board a motion to dismiss, which was denied, and now contends that the cause should be dismissed by this court for want of jurisdiction for the reason that the petition to the board was signed in the name of the city of Malden 'By Fred Lamson Mayor' instead of by the city treasurer to whom under G.L. (Ter.Ed.) c. 58, § 25, as amended, the commissioner is required to give notice of the amount distributable. There is, however, nothing in the pertinent statutes which requires that the petition be signed by the treasurer. The language of c. 58, § 25, as appearing in St. 1945, c. 687, is simply that the decision of the commissioner 'shall be subject to appeal to the appellate tax board.' The charter of Malden, St. 1881, c. 169, § 10, provides in part, 'The mayor shall be the chief executive officer of the city. It shall be his duty to be active and vigilant in causing the laws and regulations of the city to be enforced, and to keep a general supervision over the conduct of all subordinate officers.' The extensive powers of mayors under this and similar charter provisions are shown by such cases as Pedrick v. Bailey, 12 Gray, 161, 163; Nichols v. City of Boston, 98 Mass. 39, 44; Rollins v. City of Salem, 251 Mass. 468, 146 N.E. 795, and Commissioner of Corporations and Taxation v. City of Malden, 321 Mass. 46, 49, 71 N.E.2d 601. The officer to whom such powers are entrusted would seem to be the natural officer to sign the city's name to a petition of this kind. It would seem that the 'error of law' set out by the commissioner in his claim of appeal as required by G.L. (Ter.Ed.) c. 5A, § 13, as amended, is not that the petition was brought without authority from the city, but is rather that the mayor was not 'the proper party to sign' it. But even if this is not so, and even if we assume, without deciding, that the mayor needed some authority beyond his own, see Inhabitants of Walpole v. Gray, 11 Allen 149; Inhabitants of Great Barrington v. Gibbons, 199 Mass. 527, 529, 85 N.E. 737, we think that there is a presumption in the absence of evidence to the contrary that this petition which he signed for the city's benefit was regularly authorized by the city. Commercial Wharf Corp. v. City of Boston, 194 Mass. 460, 467, 80 N.E. 645; Taylor v. United States, 324 Mass. 639, 646-647, 88 N.E.2d 121. In City of Taunton v. Taylor, 116 Mass. 254, as page 262, where suit was brought at the instance of the board of health, it was said, on page 262, "In such a suit, as in any other lawfully brought in the name of the city, the bill may properly be signed by the mayor.

2. We now come to the merits. Under G.L. (Ter.Ed.) c. 58, § 24, as amended, the corporate franchise taxes paid by gas, electric light, gas and electric light, and water companies are retained by the Commonwealth in proportion to the amount of stock owned by 'non-residents,' and the remainder is distributed to the municipalities where the businesses are carried on. A very large majority of the stock of Malden Electric Company was held by the First National Bank of Boston 'as trustee of the New England Electric System.' For the purposes of the statute the trustee was the owner of this stock. Commissioner of Corporations and Taxation v. City of Springfield, 321 Mass. 31, 40-43, 71 N.E.2d 593. The real issue is whether under § 24, as amended, a national bank established within this Commonwealth is a nonresident. If it is not, the city is entitled to the further distribution which it claims. There is no controversy over the amount.

It is to be observed that there is here no question of imposing a tax or any kind of burden whatever upon a national bank. The question is simply one of the distribution under the law of this Commonwealth between the Commonwealth itself and its municipalities of a tax collected by the Commonwealth from Malden Electric Company. In First National Bank v. Commissioner of Corporations and Taxation, 279 Mass. 168, 181 N.E. 205, an income tax had been assessed upon the bank as trustee with respect to income received by it for the benefit of a Massachusetts resident, and at least some slight burden was imposed upon the bank. The assessment was held valid, the court saying, 279 Mass. at page 172, 181 N.E. at page 207, 'The appellant as a national banking association was subject to the laws of this commonwealth, where it was located, except as they may conflict with the paramount law of the United States and is to be deemed an inhabitant of this commonwealth. ¹ Continental National Bank of Memphis v. Buford, 191 U.S. 119, 123, 124, 24 S.Ct. 54, 48 L.Ed. 119; First National Bank in St. Louis v. [State of] Missouri [at inf. of Barrett], 263 U.S. 640, 656, 44 S.Ct. 213, 68 L.Ed. 486; [State of] Missouri ex rel. Burnes National Bank v. Duncan, 265 U.S. 17, 44 S.Ct. 427, 68 L.Ed. 881.' See, also, 279 Mass. at page 174, 181 N.E. 205. It is settled that national banks are subject,...