Scollard v. American Felt Co.

• Decision Date: 26 February 1907
• Citation: 80 N.E. 233,194 Mass. 127
• Parties: SCOLLARD, Tax Collector v. AMERICAN FELT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 127

80 N.E. 233

SCOLLARD, Tax Collector v. AMERICAN FELT CO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1907

COUNSEL

George A. Flynn, for petitioner.

Hollis R. Bailey, Geo. N. Webster, and Robert C. Cumming, for defendant.

OPINION

KNOWLTON C.J.

This petition in equity is brought against the defendant, a foreign corporation, under St. 1902, p. 269, c. 349, which is as follows: 'When any foreign corporation or nonresident person doing business in the commonwealth shall, for sixty days, neglect, refuse or omit to pay a tax lawfully assessed and payable, any court having jurisdiction in equity may upon petition of the collector of taxes of the city or town where the tax is assessed, restrain said corporation or person from doing business in the commonwealth until said tax with all incidental costs and charges shall have been paid. Service of process upon any such petition may be made by an officer duly qualified to serve process, by leaving a duly attested copy thereof at the place where the business is carried on.' It appears by the agreed facts that the defendant had goods, wares and merchandise, and stock in trade in Boston on May 1, 1905 which the assessors undertook to tax. It is also agreed that the corporation filed no return of its taxable property with the assessors for that year. One of the assessors therefore estimated the value of its property subject to taxation. Plainly this property was rightly taxed under St. 1903, p. 448, c. 437, § 71, unless the provision in the last part of this section, that the taxes 'shall be assessed, collected and paid in accordance with the provisions of chapters 12 and 13 of the Revised Laws,' is invalid.

The defendant contends that this tax could not lawfully be assessed to the defendant, but that it should have been assessed in rem against the particular articles of personal property to which it refers. We are of opinion that this contention is unfounded. In the first place the defendant concedes, and there is no doubt, that personal property may be separated from the domicile of the owner for purposes of taxation, and may be taxed wherever it is kept for use. Tappan v. Merchants' National Bank, 19 Wall. (U. S.) 490-499, 22 L.Ed. 189; Pullman Car Company v. Pennsylvania, 141 U.S. 18-22, 11 S.Ct. 876, 35 L.Ed. 613, and cases cited; Bristol v. Washington County, 177 U.S. 133, 20 S.Ct. 585, 44 L.Ed. 701. Nor is there any good reason why the tax should not be assessed to the owner in such cases. It should be paid by him, as it is founded upon his ownership of the property taxed, and it undoubtedly can be collected out of the property, if that can be found within the jurisdiction. Taxes so assessed have been held valid in this commonwealth. Blackstone Manufacturing Company v. Blackstone, 13 Gray, 488; Boston Loan Company v. Boston, 137 Mass. 332; Lamson Consolidated Store Service Company v. Boston, 170 Mass. 354, 49 N.E. 630. If the question were whether such a tax could be made the foundation of a personal judgment in an action at law against the owner, other considerations would be pertinent. See Bristol v. Washington County, 177 U.S. 133, 20 S.Ct. 585, 44 L.Ed. 701; Dewey v. Des Moines, 173 U.S. 204, 19 S.Ct. 379, 43 L.Ed. 665; City of New York v. McLean, 170 N.Y. 374, 63 N.E. 380. Whether collection could be made by such an action brought by the collector against the owner, it is unnecessary to decide; for if one part of the statute in regard to collection is invalid, we think it separable from the rest, on the ground that the Legislature probably would have enacted the rest without it, if the question of its validity had been considered. See Edwards v. Bruorton, 184 Mass. 529, 69 N.E. 328; Com. v. Petranich, 183 Mass. 217, 66 N.E. 807; Com. v. Anselvich, 186 Mass. 376-379, 71 N.E. 790. Upon the facts agreed, the tax appears to have been assessed properly.

For the same reason, we think it unnecessary to consider whether this mode of enforcing the payment of a tax upon property of a nonresident person doing business in this commonwealth is in accordance with the Constitution. No question of this point has been raised by either of the parties. For the distinction between rights of corporations and rights of natural persons in these particulars, see Paul v. Virginia, 8 Wall. (U. S.) 168, 19 L.Ed. 357; Pembina Consolidated Company v. Pennsylvania, 125 U.S. 181, 8 S.Ct. 737, 31 L.Ed. 650; Horn Silver Mining Company v. New York, 143 U.S. 305, 12 S.Ct. 403, 36 L.Ed. 164.

The remaining question relates to the service of process under this petition. The return of the officer shows that the service was made by the delivery of an attested copy of the petition and order of the court upon the vice president of the corporation, who was the person in charge of its...