Hairenik Ass'n, Inc. v. City of Boston

• Decision Date: 24 February 1943
• Citation: 313 Mass. 274,47 N.E.2d 9
• Parties: HAIRENIK ASS'N, INC. v. CITY OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 274

47 N.E.2d 9

HAIRENIK ASS'N, INC.

v.CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 24, 1943.

Exceptions from Superior Court, Suffolk County; R. H. Beaudreau, Judge.

Action of contract by Hairenik Association, Inc. against the City of Boston. The judge trying case without a jury found for defendant. On plaintiff's exceptions.

Exceptions overruled.

Before FIELD, C. J., and LUMMUS, QUA, DOLAN, and COX, JJ.

P. Nichols, of Boston (B. Morton, of Boston, on the brief), for plaintiff.

H. Freed, Asst. Corp. Counsel, of Boston (E. K. Nash, Ass't Corp. Counsel, of Boston, on the brief), for defendant.

DOLAN, Justice.

This is an action of contract to recover taxes assessed for the year 1938 on certain real estate owned by the plaintiff, see G.L.(Ter.Ed.) c. 60, § 98. The taxes were paid by the plaintiff under protest on the ground that the property was exempt from taxation under G.L.(Ter.Ed.) c. 59, § 5, Third. The judge before whom the case was tried without a jury found for the defendant.

There was evidence tending to show the following facts, most of which were expressly found by the judge. On April 14, 1915, a business corporation was formed under the name of Hairenik Publishing Company, by some of the plaintiff's incorporators, for the purpose of publishing a newspaper in the Armenian language, for the enlightenment and cultivation of the Armenian public in national, political, social and moral problems and matters, and for the publication of books and pamphlets. This company published the newspaper called Hairenik and functioned, in general, in accordance with the purposes above described. It occupied the real estate here involved and printed and published the newspaper, until the corporation was dissolved in March, 1921. In 1922 and 1923 the real estate was assessed to Krikort Garabedian and Jasper Rustigian ‘doing business as the Hairenik Publishing Company.’ They published the paper after the dissolution of the publishing company until the plaintiff corporation was formed in 1923.

On July 12, 1923, Garabedian and Rustigian with others formed the plaintiff corporation for the following purposes: ‘1. To help, aid and assist the widows and orphans of Armenians who have died fighting for the independence of Armenia. 2. To assist the helpless or disabled veterans who have fought and worked for the Armenian cause. 3. In furtherance but not in limitation of the foregoing purposes, to engage in a general printing and publishing business, the net income to be devoted to the general purposes of the association.’ Soon after its incorporation the plaintiff acquired title to the real estate in question and has since maintained the building as its headquarters. Printing presses, linotype machines and offices of the plaintiff are located in the basement and first floor of the building. On the second floor there is a hall with library facilities, which was used for social purposes for the Armenian people of Boston. No charge was made for the use of the hall. The plaintiff continued to print and publish the newspaper Hairenik on the premises. It is patterned after ‘our own American dailies,’ and solicits and publishes advertisements which are paid for. It has a large circulation. In addition, the plaintiff publishes a ‘weekly’ newspaper of the same name in the English language, which also has a large circulation and sells for five cents a copy. It also publishes a monthly magazine in the Armenian language, which it distributes without charge to those of the members who have paid their dues, and it also does job printing. It has a large membership in the United States and the dues are $12 per year. The receipts from dues in the plaintiff's fiscal year ending in May, 1938, amounted to $22,431, which included ‘back dues.’ The receipts from dues were segregated on the plaintiff's books, as were the receipts from the publishing business. In 1938 the plaintiff expended $13,102.70 for the relief of Armenian veterans in foreign lands, and $18,014.71 for like relief to Armenian veterans in the United States. Some donations were made by it for local public charitable purposes. The publishing account of the plaintiff, as before stated, was kept separately. Its gross income from subscriptions and advertising was $40,711.69 in the year ending May 31, 1938. In that year $8,606.04 was also received by the plaintiff from the operation of ‘shop printing’ business or, as found by the judge, for ‘job printing,’ making the gross income from the publishing and printing business $48,879.50. In the period just mentioned a net profit of $1,579.72 was shown. In some years a profit was made and in others a loss was sustained in the business. Deficits were made up out of the receipts of dues from the members. None of the income of the plaintiff from any source has ever been divided among its members. There was evidence that the purposes of the various publications were to hold the Armenians in the United States as a group ‘so that they can be reached for an appeal for funds.’

At the close of the evidence the plaintiff presented nine requests for rulings, of which two were granted. Seven were denied and the plaintiff excepted to their denial. The requests of the defendant (ten) were all granted, subject to the plaintiff's exceptions. Among the requests of the defendant were requests to the effect that on all the evidence the plaintiff was not entitled to recover, and that it is not a benevolent or charitable institution within the meaning of G.L.(Ter.Ed.) c. 59, § 5, Third, and cannot recover in this action. In argument before us the plaintiff relies largely upon its exception to the action of the judge in denying its fifth request for a ruling, which was as follows: ‘If the dominant purpose of the plaintiff in publishing a newspaper and other periodicals was to foster and retain the interest of...