Sears' Ex'rs v. Inhabitants of Town of Nahant

Decision Date18 May 1910
Citation205 Mass. 558,91 N.E. 913
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Report from Superior Court, Essex County; John C. Crosby, Judge.

Complaint by the executors of Frederick R. Sears against the Inhabitants of the Town of Nahant for the abatement of a tax, amounting to $44,000, assessed in 1908. Finding against petitioners, and case reported to Supreme Judicial Court. Judgment for respondents.

H. E. Bolles, Tyler & Young, and W. C. Rice, for plaintiffs.

S. H. Hudson and Philip Nichols, for respondents.


This petition for the abatement of a tax upon personal property is filed under Rev. Laws, c. 12, § 78. Section 77 of the same chapter, after providing that a person aggrieved by the refusal of the assessors to abate a tax may appeal therefrom by filing a complaint with the county commissioners, or any board exercising the power of such commissioners for the county in which the property is situated, and that if on a hearing the board finds that the property has been overrated it shall make a reasonable abatement and an order as to costs, further proceeds as follows: ‘If the list required to be brought in to the assessors was not brought in within the time specified in the notice required by section forty-one, the tax shall not be abated unless the appellate board finds that there was good cause for the delay or unless the assessors have so found as provided in section seventy-four. No costs shall be allowed to a complainant who has failed to file a list as required by law.’ Section 78 gives to the taxpayer a right to appeal to the superior court upon the same condition.

The list referred to is the list of his estate not exempt from taxation which, in response to a notice of the assessors, every taxpayer is required to hand in to the assessors. No list of any kind was handed in as required by the assessors until long after the time specified in the notice. It is not contended by the petitioners that the assessors found that there was either a reasonable excuse or good cause for the delay; and the appellate court has expressly found that ‘the petitioners have not shown a reasonable excuse for their delay in not filing a list of personal property within the time specified in the notice given by the assessors for the bringing in of lists, and that there was no good cause for their delay in not doing so.’ One of the grounds of the defense is that this finding of the appellate court constitutes a bar to the granting of any relief by that court to the petitioners.

Shortly stated, the question is whether, in a complaint filed under Rev. Laws, c. 12, § 77, or section 78, the appellate board can make any abatement of a tax where the complainant has not brought in to the assessors a list as required by section 41 of that chapter within the time specified in the notice and is not found, either by the assessors or by the appellate board or court, to have had any reasonable excuse or good cause for the delay. Although the precise language of the section would seem to be quite decisive, still, inasmuch as the petitioners have made an elaborate argument, based as well upon a laborious comparison of the statutes past and present as upon other considerations, to the effect that the question should be answered in the affirmative, and inasmuch also as the question is of considerable pecuniary importance to the parties in this case, and moreover is of general importance as one of practice, it seems well to consider it somewhat at length.

It is useful to look into the history of the legislation so far as it relates to the matters involved in the question. In the colony laws there does not seem to have been any provision for the furnishing of lists; and it was provided that if a taxpayer could satisfy the assessors that he was ‘overvalued’ he, in the quaint language of the times, could be ‘eased’ by them, and if they refused he could appeal to the county court (Law of 1641, Anc. Ch. pp. 69, 70); and in the early part of the provincial period, with the exception of the provision contained in the Special Tax Act of 1692-93, c. 41, §§ 5, 6 (1 Prov. Laws, pp. 167, 168), the law as to the right of abatement seems to have continued substantially the same (St. 1692-93, c. 28, § 6 [1 Prov. Laws, p. 66]; also Anc. Ch. p. 250; St. 1692-93, c. 41, § 2 [1 Prov. Laws, p. 92]; St. 1699-1700, c. 26, § 8 [1 Prov. Laws, p. 408]). See. also, 1 Prov. Laws, pp. 281, 305, 340, 362, 389. But as early as 1715 the annual or special tax acts provided that the assessors before making the assessment should call upon the inhabitants to bring in ‘true and perfect lists of their polls and rateable estate,’ and imposed a fine upon any one who should bring in a false list; and this form of legislation continued for a number of years. The bringing in of such a list however was not made a condition precedent to a right to an abatement, either by the assessors or by the county court. St. 1715-16, c. 11, §§ 4, 5 (2 Prov. Laws, pp. 21, 22). See, also, among others, 2 Prov. Laws, pp. 57, 85, 117, 148, 179, 180, 217, 256, 298, 515, 735. Compare St. 1730, c. 1 (2 Prov. Laws, p. 549).

But in St. 1735-36, c. 13, § 5 (2 Prov. Laws, p. 780), there came a redical change. The section is so significant upon the question before us as to justify a liberal quotation of its exact language: ‘The assessors, * * * in convenient time before their making the assessment, shall give seasonable warning to the inhabitants * * * [here follows the manner of giving the notice] * * * to give or to bring in to the assessors true and perfect lists of their polls and rateable estates; and if any person or persons shall neglect or refuse so to do, or bring in a false list, it shall be lawful to and for the assessors to assess such person or persons according to their known ability in such town, in their sound judgment and discretion, their due proportion to this tax, as near as they can.’ It imposes a fine of 20 shillings upon each person ‘convicted by legal proof, in the judgment of the assessors, of bringing in a false list; the said fine to be for the use of the poor of such town or district where the delinquent lives, * * * saving to the party aggrieved at the judgment of the assessors in setting forth such fine, liberty of appeal therefrom to the court of general sessions of the peace within the county, for relief, as in case of being overrated.’ Then follows this provision: ‘And if any person or persons shall not bring in a list of their estate as aforesaid to the assessors, he or they so neglecting, shall not be admitted to make application to the court of sessions for any abatement of the assessment laid on him.’

The language is plain and unambiguous. While it gives the right of appeal from the judgment of the assessors as to the question whether a list is true or false, it distinctly says a person who does not bring in a list shall not be admitted to apply to the court of sessions for an abatement. The refusal of the right to go to the court of sessions for an abatement is accentuated by the fact that upon the question whether a list is false there is an appeal to that court. The whole question of appeal to the court from the judgment of the assessors was before the lawmaking power and the rights were carefully separated and distinctly defined. Upon one question there was the right of appeal; on the other there was none. Probably the assessors, at least before the committal of their warrant to the tax collector, could have ‘eased’ a taxpayer if they were satisfied that he was ‘overvalued’; and in considering this question the law presumes that they would act, not capriciously or without restraint, but according to their best judgment and under the obligation of their official oath. But whether their decision was right or wrong, the taxpayer was bound by it. He was entirely in their hands and at their official merecy.

Thus continued the law for half a century; and every annual tax act, and every special tax act (so far as disclosed by an examination intended to be reasonably thorough), contained a clause substantially like the one we have just been considering. 2 Prov. Laws, pp. 780, 812, 903, 1034, et passim; 3 Prov. Laws, pp. 99, 167, 401, 977, et passim; 4 Prov. Laws, pp. 16, 155, 262, 397, 898, 972, et passim; 5 Prov. Laws, pp. 19, 105, 408, 758, 1112, 1432, et passim; St. 1780, c. 43; St. 1781, cc. 16, 28; St. 1782, c. 65; St. 1784, c. 25.

It may be remarked in passing that an examination of the provincial statutes above cited shows conclusively that the idea expressed by Metcalf, J., in giving the opinion of the court in Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477, 481, that ‘by the provincial statutes * * * a party aggrieved at the sum apportioned on him by assessors, and being refused an abatement by them, might appeal to the sessions for an abatement, in all cases, as a matter of right,’ was erroneous so far at least as respects the law after 1735.

The next material change was made by the general statute of 1785 (chapter 50, § 9), which, after the usual provision for the bringing in of a list to the assessors, provided further that ‘If any person or persons shall not bring in a list of their estates, as aforesaid, to the assessors, he, she, or they so neglecting or refusing, shall not be admitted to make application to the court of general sessions of the peace for any abatement of the assessment so laid on him, her or them; unless such person or persons shall make it to appear to the said court, that it was not within the power of him, her or them to deliver to the assessors respectively, a list of his, her or their rateable estate at the time appointed for that purpose.’ The change made by this statute was not against the taxpayer but was manifestly in his favor. It is to be noted that this change was made not in a tax act but in a general law relating to assessors, their...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT