Eastern Racing Ass'n, Inc. v. Assessors of Revere

Decision Date29 June 1938
PartiesEASTERN RACING ASS'N, Inc., v. ASSESSORS OF REVERE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Exceptions from Supreme Judicial Court, Suffolk County; Pierce, Judge.

Petition by the Eastern Racing Association, Incorporated, for writ of mandamus to compel the Assessors of Revere to consider seven applications of petitioner for abatement of certain taxes and to act and decide upon them within a reasonable time to be designated by the court. From an order dismissing the petition, petitioner brings exceptions.

Exceptions overruled.

J. F. Myron, of Boston, for petitioner.

J. F. Dunn, of Boston, for respondents.

DOLAN, Justice.

This is a petition for a writ of mandamus to compel the respondent members of the board of assessors of the city of Revere to consider forthwith seven applications of the petitioner for abatement of certain real estate taxes for the year 1936, and to act upon and decide them ‘within a reasonable time, to be designated by said Court.’ The case comes before us on exceptions taken to the order of a single justice of this court dismissing the petition as a matter of law.

The petitioner is the owner of certain real estate which is located in the city of Revere, and which is used by the petitioner in its business of conducting horse racing meetings in the cities of Revere and Boston. The respondents valued seven parcels of the petitioner's real estate for the purposes of taxation for the year 1936 at $813,800, and assessed upon the petitioner for that year taxes in the sum of $32,522. On September 30, 1936, the petitioner filed seven applications for abatements of the taxes assessed upon the respective parcels of real estate involved. The petitioner alleged in its petition that the respondents asked if it desired a hearing in the matter of the applications and that the petitioner ‘replied ‘Yes' in writing’ upon the date just mentioned. It further alleges that the representative of the petitioner was informed by the respondents that they were busy, that a large number of other applications for abatement were pending on which hearings were to be held, and that it would be months before they could give a hearing on the petitioner's applications. The petitioner also alleges that the respondents, ‘contriving and intending to defeat and delay the Petitioner in securing redress from said over-assessments, though often requested to act upon said seven (7) applications for abatements, have neglected and refused and still neglect and refuse to act upon them, and the Petitioner is informed and believes that they will not act upon them for a long and indefinite period in the future, or not at all, unless ordered to do so by this Honorable Court.’ The respondents answered admitting the facts relative to the valuation of the premises in question, the assessment of the taxes thereon and the other allegations of the petition, except those relating to the promise of hearing, the statements attributed to them that it would be months before they could hear the petitioner's applications, and the charges that their action was taken to defeat and delay the petitioner from securing redress. Further answering the respondents pleaded that ‘the petition does not set forth any cause for which the Court could issue a writ of mandamus,’ and that the petitioner ‘has a full, complete and adequate remedy at law.’

The Appellate Tax Board (see St.1937, c. 400, § 3) was created under the name of the Board of Tax Appeals by G.L.(Ter.Ed.) c. 58A, § 1 (see St.1930, c. 416, § 1). Section 6 of that chapter, prior to the enactment of St.1933, c. 167, § 4, authorized a taxpayer who had applied to a board of assessors for the abatement of a tax, whenever that board failed to act upon the application (except with the consent of the applicant) within four months from its date, to appeal as if the board had in fact denied the application, but provided that the time for appeal should not begin to run until the application was in fact denied. By St.1933, c. 167, § 4, however, it was provided, in part, that ‘Whenever the commissionerof corporations and taxation, in this chapter called the commissioner, or a board of assessors, before whom or which an application in writing for the abatement of a tax is or shall be pending, fails to act upon said application, except with the written consent of the applicant, prior to the expiration of four months from the date of filing of such application, it shall then be deemed to be denied, and the taxpayer shall have the right, at any time within ninety days thereafter, to take any appeal from such denial to which he may be entitled by law, in the same manner as though the commissioner or board of assessors had in fact refused to grant the abatement applied for.’ G.L.(Ter.Ed.) c. 59, § 59, as amended by St.1935, c. 187, § 1, provides, in part, that ‘A person aggrieved by the tax assessed upon him may, on or before October first of the year to which the tax relates, apply in writing to the assessors, on a form approved by the commissioner, for an...

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