Page v. City of Melrose

Decision Date07 September 1904
Citation186 Mass. 361,71 N.E. 787
PartiesPAGE v. CITY OF MELROSE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

F. S. Hesseltine, for plaintiff.

G. L Mayberry and F. L. Washburn, for respondent.

OPINION

BARKER, J.

This complaint for abatement of taxes was committed by the superior court to a commissioner to hear the parties and report the facts to the court. At the hearing before the commissioner the respondent requested him to report the evidence. The report contains a statement of the evidence followed by a statement of the facts found by the commissioner, concluding with a finding that the petitioner is entitled to an abatement of $60, with interest from March 16, 1903. The commissioner's report shows that at the hearing before him the respondent took eight exceptions to the exclusion or admission of evidence. The case was submitted to the superior court upon the report of the commissioner and the questions of law involved therein, and the respondent requested that court to rule that the evidence reported by the commissioner did not warrant his findings and rulings, and that upon the evidence reported and the facts found by him, so far as warranted by the evidence, the complainant was not entitled to maintain her complaint. The court declined to give either of the rulings requested, and granted an abatement, and the cause is here upon a bill of exceptions to the action of the court.

1. The exceptions to the admission and exclusion of evidence by the commissioner do not seem to have been relied on at the hearing in the superior court, and have not been argued here. We do not consider or pass upon them.

2. It was held in National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N.E. 288, that the judgment in matters of fact of a commissioner appointed under St. 1890, p. 103, c. 127, § 5, now Rev. Laws, c. 12, § 80, is not open to revision in this court on exceptions. Therefore the only questions now open are the questions of law whether, upon the evidence reported, the commissioner's findings were warranted, and whether, upon the findings, so far as warranted, the complainant was entitled to an abatement.

A preliminary question is raised by the complainant whether the report of evidence can be considered here. The statute provides for a report of the facts 'with or without the evidence.' The rule to the commissioner ordered him 'to hear the parties, and report the facts to the court,' and did not order him to report the evidence. We infer from the bill of exceptions that the court below treated the evidence as before it upon the commissioner's report. As that court could have recommitted the cause for a report of the evidence, if it had seen fit, we have examined the case as if the rule had required a report of the evidence as well as of the facts. The particulars in which the respondent contends that the findings of the commissioner were not warranted by the evidence are that it does not appear that the complainant filed her list seasonably, and that the evidence does not prove that she made a sufficient application to the assessors for an abatement. The tax in respect of which the abatement was sought was one assessed on real estate as of May 1, 1902. It was incumbent on the complainant to show that she seasonably filed a list of her property, as required by statute. Rev. Laws, c. 12, §§ 41, 74. The report states that no evidence was offered as to whether or not the assessors issued or published any notice pursuant to Rev. Laws, c. 12, § 41. A list of the complainant's property as of the year 1902, upon a blank in the usual form, styled 'Statement for the Taxable Year 1902 of Harriet E. Page,' the complainant, and sworn to by her on May 31, 1902, before one of the assessors, was in evidence, produced by the respondent. Besides this, it appeared that the assessors had abated the sum of $22.36 from the complainant's tax as originally assessed. Taking into account the...

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