National Bank of Commerce v. City of New Bedford

Decision Date28 February 1900
Citation175 Mass. 257,56 N.E. 288
PartiesNATIONAL BANK OF COMMERCE OF NEW BEDFORD v. CITY OF NEW BEDFORD.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Walter Clifford and Oliver Prescott, for petitioner.

Lemuel Le B. Holmes and Benj. B. Barney, for respondents.

OPINION

HOLMES C.J.

This is an appeal to the superior court, under St. 1890, c. 127, for an abatement of taxes, and is here on exceptions. It was entered, we assume, in less than 30 days after the assessors had given the appellant notice of their decision under section 2; and the suggestion is made at the outset that this is fatal to the jurisdiction, by the terms of that section. But, so far as we can see, if this point is open to the respondent, the provision for entry at the return day first occurring not less than 30 days after notice is only for the convenience of the city or town concerned as party to the litigation, and does not go to the jurisdiction of the court in such a sense that the court is not at liberty to proceed with the case if an early entry is allowed to be made without objection. No objection was taken in this case. The averment in the tardily filed answer that 'the taking, entering and prosecuting of this appeal was not authorized' goes to a different point, namely, the meaning of the directors' vote authorizing the petition, as to which some argument is made. We are aware of the strict rule that has been applied in some cases to an attempt to enter late when the party's rights are barred, but it does not seem to us that the same strictness should be extended to entries made too soon, when the right to enter is outstanding, and a proper entry could be made if the party had notice that the letter of the law was insisted upon. Palmer v. Dayton, 4 Cush. 270; Eddy's Case, 6 Cush. 28; Custy v. Lowell, 117 Mass. 78.

The superior court was asked to rule that it had no jurisdiction because the appeal was not tried at the first trial term, as provided in section 4. The reason for the delay seems to have been that the respondent had not filed an answer, but it now contends that no answer was necessary, and that the right of the superior court to try the appeal expired with its first sitting. What happened was that after the answer was filed the court appointed a commissioner, under section 5, by agreement. We do not care to say more of the respondent's position than that the provision for early trial is for the respondent's benefit, could be waived by it, and, even more plainly than that concerning entry, does not go to the jurisdiction of the court.

Another suggestion was made, that the directors' vote authorizing the petition authorized it only to the extent that the assessed valuation exceeded the fair cash value 'based on the cash sales on or about' May 1, 1897. Probably the cash sales referred to were cash sales which the petitioner offered to prove, but was prevented from proving by the objection of the respondent. If so, we cannot tell what the supposed limit would be; but, further, we think that the vote meant to authorize application for whatever abatement the bank could get, and, as the city withdrew this objection before the commissioner, we are surprised that it should have been renewed here.

We pass to the questions upon the merits. The tax rate was $16.20 per $1,000. The assessors found the fair cash value of the shares of the bank to be $73.65 a share (in excess of realty), and assessed a tax of $11,931.50. The superior court granted an abatement of $2,211.37 and interest. The case had been referred to a commissioner, as we have stated, under St. 1890, c. 127, § 5, and was heard on his report. The abatement seems to have been reached by adopting the commissioner's finding that the fair cash value of the shares was $60 a share, subject to a possible question of law, which we shall mention, but which is not open now. It is objected in the first place--we presume, under the request for a general ruling that the petitioner was not entitled to an abatement--that the commissioner was not authorized to find the value of the shares, as that was the issue to be determined, but only facts relevant to the determination of that issue by the court. We cannot agree to the objection. The fair cash value was itself a question of fact, and the fact that it was an issue did not withdraw it from the cognizance of the commissioner, any more than a similar fact necessarily would withdraw a particular conclusion from the sphere of testimony. Poole v. Dean, 152 Mass. 589, 591, 26 N.E. 406.

On the 1st of May, 1897, the bank was in the midst of a local panic or depression due to recent revelations concerning some of the New Bedford mills. The last auction sale of the stock was in November, 1896, at $80 a share. This was before the depression. The next one proved was in November, 1897, at $59.50. Experts set the value on May 1st at from $45 to $55. The respondent says that their testimony should not have been admitted, or at least should not have been followed, but that the respondent should have been allowed to prove private sales, stock quotations from the files of a newspaper, and 'the intrinsic value of the assets of the bank' after paying all its liabilities, and that the commissioner erred in excluding this evidence, and in disregarding, as he said that he did, the returns made by the bank to the comptroller of the currency, according to which the stock should have been worth $123 or $124 a share. A ruling was asked to the effect that the cash sales about May 1st were for $80, and therefore that the petitioner was not entitled to an abatement.

A portion of the argument for the respondent is addressed rather to matters of fact than to questions of law, and therefore is not pertinent to the case in its present stage. For instance, when the commissioner reports that he 'disregards' the evidence of the returns, he does not mean that he rules it to be inadmissible, for he ruled the other way; but he means that, as a judge of facts, he finds it untrustworthy and uninstructive, for good reasons, which he gives. We have nothing to do with his judgment on this point. So the degree of importance to be attached to the testimony of the experts is not to be discussed here, and, generally, which elements of the admissible evidence should have the prevailing weight in fixing the value to be determined is for the judge of facts. Upon the same principle, the ruling requested, even if the premise that the sales about May 1st were for $80 had been undisputed, was for a conclusion which was not matter of law. It was a question of fact, not only whether the sales were proved, but also whether they afforded a fair criterion of value.

The respondent argues as if it had saved an exception to the exclusion of evidence of private sales of stock from April 24, 1897, to November 3, 1897. But it appears from the record that this evidence was offered by the petitioner and objected to by the respondent. It is enough to add that we think the commissioner probably was right in considering the evidence uninstructive under the conditions not denied to have existed on the 1st of May. Eaton v. Mellus, 7 Gray, 566, 579, 580. He was right, also, in rejecting newspapers purporting to contain stock quotations furnished by named New Bedford...

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