Old Dominion Co. v. Commonwealth

• Citation: 237 Mass. 269,129 N.E. 613
• Parties: OLD DOMINION CO. v. COMMONWEALTH.
• Decision Date: 12 January 1921
• Court: United States State Supreme Judicial Court of Massachusetts

237 Mass. 269

129 N.E. 613

OLD DOMINION CO.

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 12, 1921.

Petition by the Old Dominion Company against the Commonwealth. Petition dismissed.

Edward F. McClennen and Dunbar, Nutter, & McClennen, all of Boston, for petitioner.

J. Weston Allen, Atty. Gen., and Edwin H. Abbot, Jr., Asst. Atty. Gen., for the Commonwealth.

RUGG, C. J.

This is a petition filed on September 24, 1918, by a foreign corporation to recover excises assessed and paid by it under the general tax act. St. 1909, c. 490, pt. 3, § 56.

It is settled by Lever Bros. Co. v. Commonwealth, 232 Mass. 22,¹ decided since this proceeding was instituted, that the petition so far as it concerns recovery of excises paid in 1915, 1916 and 1917, cannot be maintained. The petitioner has not argued to the contrary.

The questions presented relate to the excise of 1918. The pertinent facts respecting that are that the annual meeting of the petitioning corporation was held on January 30, 1918, and was finally adjourned on that day, and the excise here sought to be recovered was paid to the treasurer and receiver general on April 30, 1918. It is provided by section 54, part 3, of the Tax Act that--

‘Every foreign corporation shall annually, within thirty days after the date fixed for its annual meeting, or within thirty days after the final adjournment of said meeting, but not more than three months after the date so fixed for said meeting, prepare and file in the office of the secretary of the commonwealth * * * a certificate * * * showing the amount of its authorized capital stock, and its assets and liabilities. * * *’

By section 55 it is provided that--

The certificate required by section 54 must first be ‘submitted to the commissioner of corporations, who shall examine said certificate and shall as tax commissioner assess upon the corporation an excise tax in accordance with the provisions of the following section. If he finds that the certificate is in compliance with the requirements of the preceding section, he shall indorse his approval thereon; but no certificate shall be filed until he has indorsed his approval thereon, and until the excise tax required by the following sections has been paid to the treasurer and receiver general.’

By section 56:

‘Every foreign corporation shall * * * at the time of filing its annual certificate of condition, pay to the treasurer and receiver general’ the excise as assessed by the tax commissioner.

The force and effect of these three sections of the Tax Act is that no excise tax is assessed or becomes due and payable until the certificate of condition is presented to the tax commissioner, and no certificate of condition can be filed until it has been approved by the tax commissioner as in conformity to law and the excise tax by him assessed actually paid to the treasurer and receiver general. The thirty days after the annual meeting, although the time within which the certificate ought to be filed, is not the decisive date. The excise cannot be assessed until the certificate of condition is presented to the tax commissioner. That certificate contains information essentially prerequisite to the assessment of the excise. If the certificate is not seasonably presented to the tax commissioner, no excise can be assessed. The delinquent corporation can only be dealt with under sections 58 and 59. These two sections provide for penalties for failure to file the certificate, but do not authorize any assessment of excise. This excise tax law is materially different in this particular from the property tax law which fixes a definite date for the assessment. See St. 1914, c. 198, § 1. Since the excise tax cannot be assessed until the certificate is presented to the tax commissioner, nor filed until the tax is paid, its validity must be determined by the law as it stands on the date of the assessment. It is alleged in the petition that the annual meeting was held and adjourned finally on January 30, 1918, and that the tax was paid on April 30, 1918. There is no allegation that the certificate was approved and the excise assessed by the tax commissioner at any time before the tax was paid. Of course no intendment can be made in favor of the petitioner in that aparticular. Bowker v. Torrey, 211 Mass. 282, 286, 97 N. E.770;Eldredge v. Mutual Life Insurance Co. of New York, 217 Mass. 444, 105 N. E. 361. Second Society of Universalists in the town of Boston v. Royal Insurance Co., Ltd., 221 Mass. 518, 109 N. E. 384, Ann. Cas. 1917E, 491;Hayden v. Perfection Cooler Co., 227 Mass. 589, 592, 116 N. E. 871. So far as any inference is permissible, it would be to the effect that the assessment is made when the excise is paid. Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, 121 N. E. 518. The petitionercannot avail itself of any presumption of the regularity of its conduct or compliance with the law arising from the circumstance that by section 58 it was required to file its certificate within thirty days after its annual meeting, for the reason that it could not by the express terms of sections 55 and 56 file its certificate until after approval by the tax commissioner and must at the same time pay the excise, and by the averments of the petition the excise was not paid until April 30, 1918. The case must be considered on the footing that the assessment was made on April 30, 1918. The validity of the excise must be determined as of that day.

It does not appear whether proceedings had been begun against the petitioner under sections 58, 59, or whether the officers of the state merely accepted the certificate when offered for filing by the petitioner. But that is of no consequence in this connection. In either event the petitioner is bound by the law when the assessment was made on April 30, 1918.

If the excise tax law is valid when the excise is assessed and the excise is assessed according to the law at that time, it is a valid tax. Previous infirmities in the law, if removed before that time, are of no consequence in determining the validity of the excise.

The excise tax law on foreign corporations in force on April 30, 1918, was St. 1909, c. 490, pt. 3, § 56. That statute is not violative of any provision of the state or federal Constitutions. It was so decided in Baltic Mining Co. v. Commonwealth, 207 Mass. 381, 93 N. E. 831, and S. S. White Dental Manuf. Co. v. Commonwealth, 212 Mass. 35, 98 N. E. 1056, Ann. Cas. 1913C, 805, both affirmed in Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 34 Sup. Ct. 15, 58 L. Ed. 127.

The validity of section 56 is not in any particular impaired by St. 1914, c. 724, so far as concerns the case at bar, because the latter statute was repealed by St. 1918, c. 76, which took effect on March 18, 1918, several weeks before the assessment of the present excise. That all was decided as an interpretation of the meaning and a construction of the statutes of this commonwealth by Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, 121 N. E. 518, which is authoritative upon this point. Its reasoning need not be repeated.

This point appears to us to be quite outside the scope of the decisions in International Paper Co. v. Massachusetts, 246 U. S. 135, 38 Sup. Ct. 292, 62 L. Ed. 624, Ann. Cas. 1918C, 617, and LocomobileCo. of America v. Massachusetts, 246 U. S. 146, 38 Sup. Ct. 298, 62 L. Ed. 631, which were decided before the enactment of St. 1918, c. 76, and when St. 1914, c. 724, was unrepealed.

So far as the construction and interpretation of the statutes of this commonwealth are within our jurisdiction, it was expressly decided in Lawton Spinning Co. v. Commonwealth, 232 Mass. 28, 121 N. E. 518, that section 56 and St. 1914, c. 724, were separable and that there was no such connection between the valid section 56 and the invalid St. 1914, c. 724, as to prevent the validity of section 56 standing alone, even if...