Roebuck & Co. v. City Of Portland

• Decision Date: 04 August 1949
• Citation: 68 A.2d 12
• Parties: SEARS, ROEBUCK & CO. v. CITY OF PORTLAND et al.
• Court: Maine Supreme Court

68 A.2d 12

SEARS, ROEBUCK & CO.

v.CITY OF PORTLAND et al.

Supreme Judicial Court of Maine.

Aug. 4, 1949.

Sears, Roebuck & Co. brought an action against the City of Portland and the City of South Portland for a declaratory judgment to determine which of the two cities had a right to assess and collect a tax on certain personalty.

A decree of a justice of the Superior Court, Cumberland County, was entered in favor of the City of Portland, and the City of South Portland appealed.

The Supreme Judicial Court, sitting as a Law Court, Merrill, J., reviewed the right of appeal and dismissed the appeal on the ground that such a decree could be reviewed by the Law Court only upon a bill of exceptions and not by appeal.

Appeal from Superior Court, Cumberland County.

Richard M. Sullivan, Portland, Philip F. Chapman, Jr., Portland, for plaintiff.

Barnett I. Shur, Portland, for defendant City of Portland.

George W. Weeks, Portland, for defendant City of South Portland.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, and WILLIAMSON, JJ.

MERRILL, Justice.

This is an appeal from a decree of a Justice of the Superior Court entered on a petition for a declaratory judgment. The cause was heard by the Justice upon an agreed statement of facts and under a stipulation that all parties reserved the right to except or appeal in matters of law. The plaintiff, Sears, Roebuck and Company, a foreign corporation, maintained a retail store in the City of Portland and a storehouse in the City of South Portland. The storehouse contained goods, wares and merchandise upon which, based upon different valuations by the respective cities, the defendant, City of Portland, assessed a tax of $2,578.81, and the defendant, City of South Portland, a tax of $2,578.61. The plaintiff petitioned for a declaratory judgment determining which of the two defendants was entitled to levy a tax on the personal property.

In its Portland store the plaintiff conducted a retail business for the sale of personal property, consisting of goods, wares and merchandise. The goods, wares and merchandise in the storehouse in South Portland were kept for the purpose of supplying customers in Portland, South Portland and vicinity as a result of sales negotiated in the Portland store. The personal property stored in the storehouse in South Portland arrived directly at the storehouse from the various sources of supply of the plaintiff company. All deliveries of goods, wares and merchandise contained in the storehouse were made as the result of sales negotiated inthe retail store in Portland. No prospective customers could examine merchandise or negotiate a purchase and sale of the merchandise at the storehouse in South Portland. About eighty-three per cent of the goods placed in the storehouse was delivered directly to the customer without being actually transferred to the Portland store. The remaining seventeen per cent was from time to time moved to the Portland store.

It was stipulated: ‘The sole question is whether the personal property of the Plaintiff located in the storehouse in the City of South Portland is ‘personal property employed in trade’ in the City of South Portland or in the City of Portland within the meaning of Chapter 81, Section 13, sub paragraph I, Revised Statutes of Maine, 1944, and, therefore, legally taxable in either of said cities.'

It was further stipulated that if said property in the storehouse was taxable in either city that the amount of the tax assessed, together with interest and costs, should be ordered paid to the city where taxable.

The Justice found that the property in question was ‘personal properly employed in trade’ in Portland within the meaning of the statute and was there taxable; that it was not so employed or taxable in South Portland. The Justice further ordered the plaintiff to pay the City of Portland the sum of $2,578.81, with interest and costs. This decree was dated the twenty-sixth day of January, 1949.

It is to be noted that the parties by stipulation reserved the right to except or appeal in matters of law. On the fourth day of February, 1949, the City of South Portland appealed from said decree and it is upon said appeal that the case is before this Court.

In limine we are met by the question: Did the City of South Portland, by appeal, adopt the proper course of procedure to entitle it to a review of this decree? The jurisdiction of this Court to hear and determine the cause depends upon the answer thereto.

In seeking the solution of this question, certain elementary principles must be kept in mind. This Court has said many times, the Supreme Judicial Court sitting as a Law Court is of limited jurisdiction. As such, it is a statutory court and can hear and determine only those matters authorized by statute and brought to it through the statutory course of procedure. Edwards, Appeal of, 141 Me. 219, 41 A.2d 825; Cole v. Cole, 112 Me. 315, 92 A. 174; Public Utilities Commission v. Gallop, Me., 62 A.2d 166; Carroll v. Carroll, Me., 66 A.2d 809.

At common law there was no right to review the decision of a court having jurisdiction over a cause, either by bill of exceptions or by appeal. The right to attack rulings upon questions of law by a bill of exceptions was introduced by the statute of Westminster II. St., 13, Edw. I c. 31. The history of this right of exception in lieu of, and supplementing the common-law writ of error, and its extension by our statutes is exhaustively treated in Colley v. Merrill, 6 Me. 50; Bridgton v. Bennett, 23 Me. 420; and McKown v. Powers, 86 Me. 291, 29 A. 1079. This right to review by bills of exceptions is now preserved by the express provisions of R.S., Chap. 91, Sec. 14, R.S., Chap. 94, Sec. 14, R.S., Chap. 100, Sec. 39, and R.S., Chap. 95, Sec. 26.

‘But for the statute there would be no right of exception and no law court.’ Cole v. Cole, supra [112 Me. 315, 92 A. 175]. ‘While the statute grants the right to defeated litigants to bring their grievances to the law court for review, that is not a constitutional, nor even a common-law right. The Legislature has authority to repeal that statute, and withhold the right of appeal or motion, (and we add, exceptions) and compel suitors to be content with results reached in the trial courts; or the right may be granted, subject to such restrictions, limitations, and conditions as the Legislature may annex.’ Stenographer Cases, 100 Me. 271, 275, 61 A. 782, 784. ‘The common law knows no right of appeal.’ Simpson v. Simpson, 119 Me. 14, 15, 109 A. 254, 255. These fundamental principles apply to declaratory judgments. Murray Motor Co. v. Overby, 217 Ky. 198, 289 S.W. 307.

The right to bring cases to the Law Court by bills of exceptions is general, and extends generally to all rulings of law in cases heard by a single Justice. No statute specifically confers upon litigants such general right of appeal to the Law Court; nor is there any statute which confers upon the Law Court jurisdiction to hear and determine appeals in general, from which it might even be argued that the existence of a general right of appeal is inferentially granted to suitors in all cases. The right of appeal to the Law Court exists only in cases where it is specifically conferred by statute.

In equity cases, not only is there a statutory right to exceptions, R.S., Chap. 95, Sec. 26, but the right of appeal to the Law Court has been specifically granted, R.S., Chap. 95, Secs. 21 and 23. Furthermore, R.S., Chap. 91, Sec. 14, confers jurisdiction upon the Law Court to hear and determine all questions arising in equity cases. Reference to other instances where the right of an appeal to the Law Court is conferred by statute is unnecessary.

In this jurisdiction we have long had and recognized three distinct statutory methods for obtaining a review of cases by the Law Court, motion, exceptions and appeal. These various methods of obtaining a review by this Court are not interchangeable and equally applicable to all cases. The method to be used depends not only upon the nature of the cause in which, but also upon the nature of the question of which the review is sought. As the right to review is wholly statutory, so too the method for obtaining the review is likewise regulated by statute. Only cases in which a statutory right of review before this Court is granted can be heard and determined by the Court, and then only when brought to the Court by the course of procedure, that is, the method, authorized by a general or specific statute applicable to the particular cause of action and the nature of the question presented for review.

These requirements are jurisdictional, and the Law Court has no jurisdiction to consider a case upon ‘appeal’ or ‘motion’ which should be presented to it by ‘bill of exceptions'. Edwards, Appeal of, supra; Bronson, Appeal of, 136 Me. 401, 11 A.2d 613; Tuck v. Bean, 130 Me. 277, 155 A. 277; Heim v. Coleman, 125 Me. 478, 135 A. 33; Tozier, Coll. v. Woodworth and Land, 136 Me. 364, 10 A.2d 454; Simpson v. Simpson, supra; Carroll v. Carroll, supra. When the remedy to obtain review is by bill of exceptions, and an appeal is erroneously taken, consent cannot confer jurisdiction. English v. Sprague, 32 Me. 243.

The plaintiff seeks relief under the ‘Uniform Declaratory Judgments Act’, R.S., Chap. 95, Secs. 38-50, both inclusive. The Act provided an entirely new remedy, a form of relief not theretofore possessed by plaintiffs. Maine Broadcasting Co., Inc., v. Eastern Trust and Banking Co. Me., 49 A.2d 224. In doing so it was competent for the Legislature to withhold altogether the right of review, or to enact such restrictions and qualifications thereon as a prerequisite to the right as it saw proper, since the right of review by the Law Court is not a constitutional one but only a matter of grace. Murray Motor Co. v. Overby, supra. The right to review declaratory judgments is granted by Sec. 44 of the Act, which provides, ‘All orders,...