Lever Bros. Co. v. Commonwealth

• Decision Date: 09 January 1919
• Citation: 232 Mass. 22,121 N.E. 516
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: LEVER BROS. CO. v. COMMONWEALTH. PHILADELPHIA & READING COAL & IRON CO. v. SAME.

232 Mass. 22

121 N.E. 516

LEVER BROS. CO.

v.COMMONWEALTH.

PHILADELPHIA & READING COAL & IRON CO.

v.SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 9, 1919.

Cases Reserved from Supreme Judicial Court, Suffolk County.

Petitions for the recovery of excise taxes and fees by the Lever Bros. Company and the Philadelphia & Reading Coal & Iron Company against the Commonwealth. On reservations by a single justice of the Supreme Judicial Court for the determination of the full court. Appropriate decree ordered in each case.

William M. Richardson, of Boston, for petitioners.

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

RUGG, C. J.

These are petitions brought by foreign corporations under St. 1909, c. 490, part 3, § 70, to recover corporation excise taxes and filing fees alleged to have been exacted illegally. Each petition was filed in April, 1918. The petition of Lever Bros. Company seeks the recovery of excises and fees paid in 1914, 1915, 1916, 1917, and in February, 1918; that of the Philadelphia & Reading Coal & Iron Company seeks the recovery of excises and fees paid in 1914, 1915, 1916, and in December, 1917. It is an express term of said section 70 that any corporation ‘aggrieved by the exaction of said tax or excise or of any portion thereof may, within six months after the payment of the same’ apply by petition for an adjudication that the tax has been exacted illegally, and such petition is declared to ‘be the exclusive remedy.’

The petitioners, therefore, do not bring themselves within the terms of the statute as to any of the payments made in the way of excises and fees before the last averred in each petition. The Commonwealth is the defendant. It can be impleaded in its courts only by its consent. There must be strict compliance with the terms of the statute upon which that consent is granted before the Commonwealth as a sovereign power can be held to answer to the petition. McArthur Brothers Co. v. Commonwealth, 197 Mass. 137, 83 N. E. 334;Briggs v. Lightboats, 11 Allen, 157;Kawananakoa v. Polyblank, 205 U. S. 349, 27 Sup. Ct. 526, 51 L. Ed. 834;Kansas v. United States, 204 U. S. 331, 27 Sup. Ct. 388, 51 L. Ed. 510;Louisiana v. McAdoo, 234 U. S. 627, 34 Sup. Ct. 938, 58 L. Ed. 1506. Compliance with such a limitation as to time of institution process is a condition precedent to the maintenance of the proceeding. Wheatland v. Boston, 202 Mass. 258, 88 N. E. 769. The court has no jurisdiction to entertain proceedings for relief begun at a later time. Cheney v. Assessors of Dover, 205 Mass. 501, 503, 91 N. E. 1005;International Paper Co. v. Commonwealth, 121 N. E. 510.

The remedies given by the statute are expressly made exclusive of all others. Attorney General v. East Boston Co., 222 Mass. 450, 452, 111 N. E. 167.

Section 70, in addition to establishing jurisdictional conditions precedent, is also in one aspect a statute of limitations. It limits the time, within which petitions for the recovery of excises illegally exacted may be brought, to a period of six months after the payment of the excise of which complaint is made. That period of time as a limitation has long been in our tax laws respecting corporations. It was in existence many years before the exactions here in controversy. It has been in force since St. 1867, c. 52, § 2. Its reasonableness in this particular never has been assailed. Under our own decisions and constitution it manifestly is reasonable as to time. Mulvey v. Boston, 197 Mass. 178, 183, 83 N. E. 402,14 Ann. Cas. 349, where the general subject of reasonableness of time in statutes of limitations was considered at large in an opinion by Chief Justice Knowlton. A period of three months after payment of a tax as a limitation of time within which to bring action for its recovery has been upheld as valid after full discussion in Wheatland v. Boston, 202 Mass. 258, 88 N. E. 769. We do not understand that the principles adopted and followed upon this point by the Supreme Court of the United States are at variance. It was said in Wilson v. Iseminger, 185 U. S. 55, at page 63, 22 Sup. Ct. 573, at page 575 (46 L. Ed. 804):

‘What shall be considered a reasonable time must be settled by the judgment of the Legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice * * * ‘In all such cases, the question is one of reasonableness. * * * Of that the Legislature is primarily the judge, and we cannot overrule the decision of that department of government, unless a palpable error has been committed. In judging of that, we must place ourselves in the position of legislators, and must measure the time of the limitation in the midst of circumstances which surrounded them, as nearly as possible, for what is reasonable in a particular case depends upon its particular facts.’ Turner v. New York, 168 U. S. 90 [18 Sup. Ct. 38, 42 L. Ed. 392].' American Land Co. v. Zeiss, 219 U. S. 47, 67, 31 Sup. Ct. 200, 55 L. Ed. 82;Blinn v. Nelson, 222 U. S. 1, 7, 32 Sup. Ct. 1, 56 L. Ed. 65, Ann. Cas. 1913B, 555;United States v. Morena, 245 U. S. 392, 397, 38 Sup. Ct. 151, 62 L. Ed. 359.

This branch of the case is fully covered in principle by International Paper Co. v. Commonwealth, 121 N. E. 510, just decided.

It follows that the court has no jurisdiction to consider the validity of the payments in way of tax made by these petitioners at any time prior to six months before the bringing of the petitions. The first paragraph of the demurrer of the commonwealth is sustained.

The last excise described in each of these petitions was assessed and paid while St. 1909, c. 490, part 3, § 56, and St. 1914, c. 724, were both on the statute books and before the latter was repealed by St. 1918, c. 76. The claim of each petitioner to recover the amount paid for that excise is supported precisely by the decision of Locomobile Co. of America v. Massachusetts, 246 U. S. 147,38 Sup. Ct. 298, 62 L. Ed. 631. The cases at bar both are governed upon this point by Liquid Carbonic Co. v. Commonwealth, 121 N. E. 514, just decided. The second paragraph of the demurrer is overruled.

The petitioner also seeks to recover a fee of $5 paid by it under section 91 of St. 1913, c. 437, for filing its annual certificate of condition required by St. 1909, c. 490, part 3, § 54. This is not a tax, but a simple fee no larger in amount than may be regarded as necessary to bear the expenses of maintaining...