Int'l Paper Co. v. Commonwealth

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: 232 Mass. 7,121 N.E. 510
• Decision Date: 09 January 1919
• Parties: INTERNATIONAL PAPER CO. v. COMMONWEALTH.

232 Mass. 7
121 N.E. 510

INTERNATIONAL PAPER CO.
v.
COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1919.

Report and Case Reserved from Supreme Judicial Court, Suffolk County.

Petition by the International Paper Company against the Commonwealth to recover an excise tax. On report and reservation by a single justice of the Supreme Judicial Court for the determination of the full court. Decree ordered dismissing the petition.

George [232 Mass. 90]L. Mayberry, Chas. A. Snow, Frank T. Benner, and Wm. P. Evarts, all of Boston, for petitioner.

Henry C. Attwill, Atty. Gen., and Wm. Harold Hitchcock, Asst. Atty. Gen., for the Commonwealth.

RUGG, C. J.

This is a petition under St. 1909, c. 490, part 3, § 70, to recover an excise tax alleged to have been exacted contrary to law. The petition which avers that the tax was paid on May 21, [232 Mass. 10]1917, was filed on November 12, 1917. On the same day an order of notice was issued returnable on the first Monday of December following, which, so far as appears, never was in the hands of an officer and never was served. On March 14, 1918, another order of notice issued, service

[121 N.E. 511]

of which was acknowledged on the same day. The Attorney General filed a motion to dismiss the petition on the general ground that the petition was not brought and notice thereof served within the time prescribed by law. The decision of the question thus raised depends upon the terms of said section 70 printed in the margin.¹ There must be direct compliance with the terms of this statute. The commonwealth has consented to be impleaded only on the conditions there set forth. McArthur Brothers Co. v. Com., 197 Mass. 137, 83 N. E. 334.

Where a remedy is created by statute and the time within which and the method according to which it must be pursued are prescribed as conditions under which it can be availed of, the court has no jurisdiction to entertain proceedings for relief, begun at a later time or prosecuted in a different method. Peterson v. Waltham, 150 Mass. 564, 23 N. E. 236;Lancy v. Boston, 185 Mass. 219,70 N. E. 288;Partridge v. Arlington, 193 Mass. 530, 79 N. E. 812;Wheatland v. Boston, 202 Mass. 258, 88 N. E. 769. This rule governs proceedings designed to afford relief against illegal taxation. Cheney v. Assessors of Dover, 205 Mass. 501, 503, 91 N. E. 1005. It is applicable to the provisions of said section 70.

Application for abatement of the tax must be made by filing of the petition within six months after the payment of the excise. That is the only express requirement as to time found in the section. It is to be noted, however, that it is not provided in section 70 that the filing of a petition without process should constitute the commencement of proceedings, although express language to that end often has been used in statutes presumably when so intended by the Legislature. See, for example, R. L. c. 48, § 111; chapter 197, § 9. The parties are not in court on the mere filing of the petition. Something more is necessary. The only specific provision in the statute as to service of process on the petition is that a copy ‘shall be served on the treasurer and receiver general and upon the attorney general.’ No time is named for such service. But it is provided that--

‘The proceedings upon such petition shall conform, as nearly as may be, to proceedings in equity.’

In this connection the word ‘proceedings' is of broad signification. It comprehends [232 Mass. 11]every step from the filing of the petition until the final determination of the controversy. It includes the issuance and service of process by which the Commonwealth is to be summoned into court. Lait v. Sears, 226 Mass. 119, 124, 115 N. E. 247. Section 70 of the tax act states the conditions under which a petition may be filed. One of these is in the nature of a limitation as to time. Whether this limitation arises in determining a condition of jurisdiction or in determining whether the statute of limitations has been barred, it is one and the same question and must be governed by the same principles. The real question, therefore, is whether a statute of limitations ordinarily is barred by the simple filing of a petition in equity, or whether in addition there must be the taking out of a subpoena and an attempt in good faith to serve it.

That point has never been presented for decision in this commonwealth. It has arisen in the courts of numerous other jurisdictions. The decisions are not in harmony. It was early held by Chancellor Walworth in Hayden v. Bucklin, 9 Paige (N. Y.) 512, that--

‘The filing of the bill and taking out a subpoena thereon, and making a bona fide attempt to serve it without delay, may be considered as the commencement of the suit for the purpose of preventing the operation of the statute of limitations.’

To the same effect is Fitch v. Smith, 10 Paige (N. Y.) 9. The point was discussed elaborately in United States v. American Lumber Co., 85 Fed. 827, 29 C. C. A. 431, with a review of cases, and it was said that--

‘It has been the interpretation of the English chancery practice, as the same has been followed and applied by the American state courts, that a suit is begun, within the meaning of the statute of limitations, when the subpoena has been issued, provided that its issuance has been followed by a bona fide effort to serve the same.’

There are other statements of the rule to the same general effect. United States v. Norris, 222 Fed. 14, 137 C. C. A. 552, 557;Pindell v. Maydwell, 7 B. Mon. (Ky.) 314;Fairbanks v. Farwell, 141 Ill. 354, 368, 30 N. E. 1056;Peck v. Insurance Co., 102 Mich. 52, 60 N. W. 453;Dedenback v. Detroit, 146 Mich. 710, 110 N. W. 60;Nicholas v. British American Assur. Co., 109 Ga. 621, 34 S. E. 1004. See County v. Pacific Coast Borax Co., 67 N. J. Law, 48, 50 Atl. 906. The weight of

[121 N.E. 512]

authority seems to support this rule. It was said in Linn & Lane Timber Co. v. United States, 236 U. S. 574, at page 578, 35 Sup. Ct. 440, at page 441 (59 L. Ed. 725):

‘The bills were filed and subpoenas were taken out and delivered to the marshal for service before the statute had run, reasonable diligence was shown in getting [232 Mass. 12]service and therefore the rights of the United States against all the patents were saved. For when so followed up the rule is pretty well established that the statute is interrupted by the filing of the bill.’

But there are contrary decisions. Armstrong Cork Co. v. Merchants' Refrigerating Co., 184 Fed. 199, 107 C. C. A. 93, 100;Dilworth v. Mayfield, 36 Miss. 40, 52;State v. Wilson, 216 Mo. 215, 292, 115 S. W. 549;Aston v. Galloway, 38 N. C. 126.

There are numerous expressions to be found in the books that a suit in equity is deemed to be commenced with the filing of the bill. That is doubtless true as a convenient, abbreviated and generally applicable statement. It governs in the great majority of cases because ordinarily there is no delay in taking out a subpoena or in service of some other sort by order of the court. See, for instance, Farmers' Loan & Trust Co. v. Lake Street Ry. Co., 177 U. S. 51, 60, 20 Sup. Ct. 564, 44 L. Ed. 667;Clark v. Slayton, 63 N. H. 402, 1...