Tremont & Suffolk Mills v. City of Lowell

• Decision Date: 03 April 1901
• Citation: 59 N.E. 1007,178 Mass. 469
• Parties: TREMONT & SUFFOLK MILLS v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 469

59 N.E. 1007

TREMONT & SUFFOLK MILLS v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

April 3, 1901

COUNSEL

F. E. Dunbar, for plaintiff.

Francis W. Qua and Harry A. Brown, for defendant.

OPINION

HOLMES C.J.

This is a petition for the abatement of taxes assessed by the city of Lowell upon the petitioner's real estate and machinery for the year 1897. It was proved, subject to the exception of the petitioner, tat the tax commissioner in determining the franchise tax to be paid by the corporation for the same year, had taken as the value of the real estate and machinery to be deducted under Pub. St. c. 13, § 40, the valuation now sought to be abated, and that the petitioner had paid the tax thus determined. Thereupon the Superior Court ruled that the petitioner was not entitled to an abatement under Pub. St. c 11, §§ 69-71, and St. 1890, c. 127, and reported the case. The argument in favor of the ruling regards the franchise tax and the local tax on real estate &c. as if they were complementary taxes intended to divide the property of the corporation between them, and finds a sufficient support for the ruling in the consideration that, of there were an abatement now made on the valuation deducted for the franchise tax from the fair cash valuation of the shares, a part of the petitioner's property would escape taxation. But it appears to us very plain that this argument is a fallacy and that the ruling was wrong. The franchise tax is not a tax on the property of the corporation, and its validity sometimes has depended upon this consideration. Com. v. Hamilton Mfg. Co., 12 Allen, 298; Com. v. Cary Imp. Co., 98 Mass. 19; National Bank of Commerce v. City of New Bedford, 155 Mass. 313, 29 N.E. 532. It is true that to prevent the technical distinction being made the excuse for double taxation it is provided that the real estate &c. taxed locally shall be deducted from the value of the stock in valuing the franchise. But that does not mean that the franchise tax is a tax on the property of the corporation, as the cases city sufficiently show. The proceedings for abatement in Pub. St. c. 11, and St. 1890, c. 127, are given in general terms, and we perceive no warrant for denying them in the fact that another officer having a different end in view has adopted the valuation sought to be revised. The possibility of such escape as is involved in a difference between the...