Mexican Cent. Ry. Co. v. Com.

• Decision Date: 17 May 1906
• Citation: 77 N.E. 1034,192 Mass. 129
• Parties: MEXICAN CENT. RY. CO., Limited v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 129

77 N.E. 1034

MEXICAN CENT. RY. CO., Limited v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 17, 1906

COUNSEL

J. L. Thorndike, for petitioner.

Dana Malone, Atty. Gen., and Fred T. Field, Asst. Atty. Gen., for the Commonwealth.

OPINION

SHELDON J.

This is a petition brought for the abatement and repayment of the tax assessed upon the franchise of the petitioner on the 1st day of May, 1905. No question is raised as to the remedy if the tax was erroneously assessed. Rev. Laws, c. 14, § 67; St 1903, p. 319, c. 437, § 84.

The petitioner is a corporation organized under the laws of Massachusetts relating to the construction of railroads in foreign countries. Rev. Laws, c. 111, § 281 et seq. The tax in question was one-twentieth of one per cent. upon the par value of its capital stock, and was assessed in accordance with the provisions of Rev. Laws, c. 14, §§ 49, 52, to which the petitioner was made subject by Rev. Laws, c. 111, § 285. No question is made but that this assessment was valid if Rev. Laws, c. 14, §§ 49, 52, were in force on the 1st day of May, 1905. But these sections with others were repealed in 1903, by the business corporation law (St. 1903, c. 437, § 95), and domestic corporations subject to the provisions of the latter statute, including the petitioner, were made liable, by section 74 of the same act, to a tax of a different amount, to be assessed in a different way. If this were all the case there is no doubt that the petitioner would be entitled to the relief which it seeks. But St. 1904, p 86, c. 169, in section 1, amends Rev. Laws, c. 111, § 284, by adding an enumeration of additional powers given to the corporations in question, and then provides in section 2 that, 'section two hundred and eighty-five of chapter one hundred and eleven of the Revised Laws is hereby amended by adding at the end thereof the words--except as otherwise provided herein--so as to read as follows: Section 285. Such corporation shall be subject to the provisions of the first clause of section forty-eight and sections fifty-five fifty-eight, fifty-nine, sixty, and seventy-eight of this chapter, and of section fifty-two of chapter fourteen except as otherwise provided herein.' The commonwealth contends that the effect of this statute was to revive and re-enact Rev. Laws, c. 14, § 52, with so much of section 49 as was by reference in section 52 made applicable to corporations like the petitioner, and accordingly that the tax in question was rightly assessed, and that the petition cannot be maintained. Com. v. Kenneson, 143 Mass. 418, 9 N.E. 761.

In our opinion this contention cannot be supported. The business corporation law, which by its first section was made applicable to corporations like the petitioner, not only expressly repealed the statutes (Rev. Laws, c. 14, §§ 49-52) under which such corporations previously had been taxed, but substituted a different mode of taxation with a different rule of assessment (St. 1903, p. 317, c. 437, § 74). And a perfecting amendment was made to the section, and the section re-enacted as amended, by St. 1904, p. 175, c. 261, which took effect a month after St. 1904, p. 86, c. 169, relied on by the commonwealth. The final expression of the legislative will accordingly is that the...