Hamilton Mfg. Co. v. City of Lowell

• Decision Date: 27 February 1931
• Citation: 274 Mass. 477,175 N.E. 73
• Parties: HAMILTON MFG. CO. v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 477

175 N.E. 73

HAMILTON MFG. CO.

v.CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 27, 1931.

Exceptions from Superior Court, Middlesex County; Winifred H. Whiting, Judge.

Statutory complaint by the Hamilton Manufacturing Company by way of appeal from the refusal of the assessors of the City of Lowell to abate certain taxes. The case, after being referred to a commissioner, was heard by a judge of the superior court, and, to review his decision, both parties bring exceptions.

Exceptions overruled.

B. E. Eames, of Boston, for plaintiff.

H. V. Charbonneau, City Sol., and P. J. Reynolds, both of Lowell, for defendant.

RUGG, C. J.

This is a complaint under G. L. c. 59, § 65, by way of appeal from the refusal of the assessors of the defendant to abate taxes assessed as of April 1, 1927, upon the land, buildings and machinery of the complainant. The case, after being referred to a commissioner, was heard upon his report and other evidence by a judge of the superior court.

Both parties alleged exceptions and filed separate bills of exceptions. In each is printed the comprehensive and long report of the commissioner. This was a needless expense and a troublesome increase in the bulk of the papers. A single copy of that report would have been better. The parties doubtless could have agreed as to the division of the expense of printing it. If not, the court could have made an order as to such division. Barrell v. Globe Newspaper Co., 268 Mass. 99, 167 N. E. 910.

The first contention of the defendant is that the complainant is not a ‘person aggrieved’ by the taxes assessed upon it or by the refusal of assessors to abate that tax within the meaning of G. L. c. 59, §§ 59, 64, 65, and hence cannot prevail. The facts pertinent to the determination of that contention are these: The complainant, once a highly prosperous manufacturer of cotton goods, had fallen into financial distress. After numerous ineffectual attempts at rehabilitation, receivers were appointed, manufacturing was discontinued, and the receivers were authorized to accept an offer of $700,000 for the physical property. See Boucher v. Hamilton Mfg. Co., 259 Mass. 259, 156 N. E. 424, where proceedings touching that matter are set forth. Shortly after the decree of the superior court authorizing the sale, and pursuant thereto, an agreement was made for the sale, conveyance to be made on or before March 15, 1927. The purchaser, however, declined to go through with the transaction until litigation involving the validity of that decree had been determined by the Supreme Judicial Court; but on April 14, 1927, the day following the rescript affirming the decree, the conveyance was made. The deed, drafted before but not delivered until after April 1, made no mention of taxes for 1927. The obligation as between the parties to pay the taxes assessed as of April 1, 1927, was in truth assumed by the purchaser. In October, 1927, a petition for abatement of the taxes in the name of the Hamilton Manuf. Company, signed by its receivers, was filed with the board of assessors of the defendant. This petition was denied. On June 8, 1928, the superior court allowed the petition of the purchaser for leave to prosecute the present proceeding in the name of the complainant but upon the understanding that it would be done at no expense to the receivers and that the assets in their hands were not thereby to be subjected to any financial obligation.

The words ‘person aggrieved’ in these sections of the tax laws ‘mean one whose pecuniary interests are or may be adversely affected.’ Hough v. North Adams, 196 Mass. 290, 291, 82 N. E. 46, 47;Essex Co. v. Lawrence, 214 Mass. 79, 87, 100 N. E. 1016. We are of opinion that the complainant was a person aggrieved in this sense. It was the owner of record and the owner in fact of the property upon which the assessment was laid. The tax was rightly assessed. One of several causes might have prevented the performance of the agreement for the sale of the property. The decree authorizing the sale might have been reversed by the full court. The purchaser might have been disabled financially from carrying it out. The agreement might have been abrogated by the parties. The property might have been destroyed in substantial part. Libman v. Levenson, 236 Mass. 221, 128 N. E. 13, 22 A. L. R. 560. The agreement between the seller and the buyer of the property that the latter should assume and pay the taxes was in no way binding upon the collector of taxes. He was not a party to it. Whether he could under any circumstances become a party to such an agreement need not be considered. The primary obligation to pay the taxes rested upon the Hamilton Manufacturing Company. But for the receivership, the collector of taxes might have brought an action at law against that company to collect the amount due for taxes. G. L. c. 60, § 35. It would be the duty of the court in the receivership proceedings, upon proper representation or intervention by the collector of taxes, to order the taxes paid by the receivers. Waite v. Worcester Brewing Co., 176 Mass. 283, 57 N. E. 460;Equitable Trust Co. v. Kelsey, 209 Mass. 416, 95 N. E. 850, Ann. Cas. 1912B, 750;Boston v. Turner, 201 Mass. 190, 195, 87 N. E. 634, and cases cited; G. L. c. 206, § 31. The real estate was subject, after the first of April, to the lien for the payment of the taxes. The rights and obligations arising from agreement between the complainant and the purchaser were of no legal interest to the collector of taxes charged with the performance of independent duties under the statutes as a public officer. Bolster v. Lawrence, 225 Mass. 387, 389, 114 N. E. 722, L. R. A. 1917B, 1285. The circumstance that the complainant, if compelled to pay the taxes, might have a right of action over against the purchaser of the property does not have the effect of removing the complainant from classification as a ‘person aggrieved.’ That right of action might become worthless. It has been held that the purchaser of real estate after the assessment date is not a person aggrieved by an over assessment because he was not the person assessed and the primary liability for the tax is upon the person assessed. Dunham v. Lowell, 200 Mass. 468, 86 N. E. 951;Burr v. Boston, 208 Mass. 537, 539, 95 N. E. 208,34 L. R. A. (N. S.) 143. To adopt the contention of the defendant on this point would result in holding that there could be no proceeding whatever for abatement of the tax, a statutory interpretation not permissible unless required by inescapable legislative mandate.

The proceedings may be prosecuted in the name of the complainant by the purchaser as the person beneficially interested. Hart v. Western R. Co., 13 Metc. 99, 106,46 Am. Dec. 719;Goodrich v. Stevens, 116 Mass. 170;Fay v. Guynon, 131 Mass. 31.

The complainant was the owner of the property upon which the tax was assessed on April 1, and until April 14, 1927. It was, therefore, the taxpayer, the person subject to taxation and the only one to file the true list of its property subject to taxation on the taxing date as foundationfor proceedings for abatement. G. L. 59, §§ 29, 61. The complainant properly could file the list, even after the conveyance of the property. The list filed was a proper and sufficient list. There is in the record no copy of the decree appointing the receivers of the complainant. In view of the extensive powers exercised by them, as shown by the present record, it will be inferred that they had authority to file proper lists to protect the property of the complainant. There is nothing in Archambeau v. Platt, 173 Mass. 249, 53 N. E. 816, at variance with this conclusion.

The contention of the defendant that it is entitled to prevail because the tax was not paid before the complaint was filed cannot be supported. It is provided by G. L. c. 59, § 68, that, ‘If, on hearing, the court finds that the complainant has complied with all the provisions of law and has paid the tax for which he has been assessed, it may grant him a reasonable abatement.’ There is nothing in these words fixing any date before which the tax must be paid, except that on the hearing it must be found to be paid. There is nothing in the history or the context of these statutory words to justify the construction that the tax must be paid before the proceeding can be instituted. Payment must be made before the abatement can be granted. That is the only requirement. Commonwealth Investment Co. v. Brookline, 268 Mass. 32, 167 N. E. 227. Proceedings for abatement before the county commissioners under G. L. c. 59, § 64, may be instituted before payment of the tax. Milford v. County Commissioners, 213 Mass. 162, 164, 100 N. E. 60. An appeal to the superior court for abatement under G. L. c. 59, § 65, is ‘subject to the same conditions' as are provided in section 64. Compare G. L. c. 59, § 68A, as amended by St. 1929, c. 212. If the General Court had intended that payment of the tax should be a prerequisite to filing the complaint, clear language to that end would have been used. The proceeding in Bogigian v. Commissioner of Corporations & Taxation, 248 Mass. 545, 143 N. E. 671, was brought under G. L. c. 62, § 47, whereby prepayment of the tax is required as a condition to filing the complaint. Nothing in that decision was intended to intimate that similar prepayment was required under G. L. c. 59, §§ 65, 68.

Proceedings for abatement of taxes, although in the nature of an action at law, are prescribed throughout by the statute, and the rules as to procedure in actions at common law are not applicable. No process is required to be served in such complaint. Cheney v. Dover, 205 Mass. 501, 503, 91 N. E. 1005. Cases like Freeman v. Hedrington, 204 Mass. 238, 90 N. E. 519,17 Ann. Cas. 741, to the effect that the cause of action must have arisen in completeness before the suing out of the writ, are not controlling.

The taxes in question...