Trustees of Amherst College v. Assessors of Town of Amherst

• Decision Date: 26 November 1906
• Citation: 193 Mass. 168,79 N.E. 248
• Parties: TRUSTEES OF AMHERST COLLEGE v. ASSESSORS OF TOWN OF AMHERST (four cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 168

79 N.E. 248

TRUSTEES OF AMHERST COLLEGE v. ASSESSORS OF TOWN OF AMHERST (four cases).

Supreme Judicial Court of Massachusetts, Hampshire.

November 26, 1906

COUNSEL

M. F. Dickinson and Walter B. Farr, for petitioners.

Wm. G Bassett and Wm. J. Reilley, for respondent.

OPINION

MORTON J.

These are four petitions for the abatement of taxes assessed upon real eatate of the petitioner in the town of Amherst by the assessors of Amherst for the years 1901, 1902, 1903 and 1904. Abatements were refused by the assessors and thereupon the taxes were paid under protest and appeals taken to the superior court. The cases were heard together by the court without a jury. The petitioners contended in each case that the property was exempt from taxation. The court found for the petitioners in each case and ordered judgment against the inhabitants of the town for the amount paid with interest and by agreement of parties reported the cases to this court judgment to be entered on the findings if correct, otherwise such judgments to be entered as the court should deem proper.

The respondents contend generally that the property was rightly assessed. They contend further in regard to the taxes assessed for the years 1901 and 1902 that the lists filed by the petitioners were not sworn to and the court found as a fact that they were not. They contend still further in regard to the facts for the year 1901 that the application for abatement was not made within six months of the date of the tax bill. We take up first these formal matters assuming, without deciding, that the provisions of the Revised Laws in regard to abatements apply to the tax of 1901 though it was assessed before they went into effect. Some contention is made by the petitioners that the evidence, which is stated in the report, did not warrant a finding that the lists of 1901 and 1902 were not sworn to. But we deem it enough to say of this contention that the finding appears to us to have been clearly warranted by the evidence. The question remains on this branch of the case as to the effect of the finding on the right of the petitioners to an abatement of the taxes for those years.

The petitioners concede that prior to the Revised Laws the filing of a sworn list was a condition precedent to an abatement (Otis Co. v. Ware, 8 Gray, 509; Charlestown v. Com'rs, 101 Mass. 87); but they contend that this has been changed and that now the list need not be sworn to unless required by the assessors; in other words that the sworn list which was formerly compulsory is now optional with the assessors. They rely, for this contention, on the fact that the list to be furnished is that required by section 41 and that there is no express provision in that section as there was in the corresponding section in Pub. St. 1882, c. 11, § 72, that the list shall be sworn to. They also rely upon the fact that a verification on oath of the list is expressly required in the case of an applicant for abatement of his real estate tax when the notice did not require real estate to be included in the list brought in by the taxpayer. But it is manifest we think that the list required in section 41 is a sworn list. It is the list which taxpayers are to bring in in accordance with the notice which the assessors are required to post. And section 43 provides that 'the assessors shall in all cases require a person bringing in a list to make oath that it is true,' meaning as, we think, that the list referred to in section 41 when brought in shall be sworn to and that the assessors or their secretary or head clerk may administer the oath and that until sworn to it is not the list which the taxpayer is required to bring in. The omission from section 74, c. 12, Rev. Laws, of the requirement of an oath was no doubt for the purpose of condensation and is immaterial so long as the list required by section 41 is a sworn list. The section (section 74) is as reported by the commissioners, except that the numbering has been changed and they make no reference to any change in the law in regard to a sworn list as intended or desirable. See Report of Commissioners for Consolidating and Arranging Pub. St. 1882, pt. 1, c. 12, § 76. The provision for a sworn list where the notice does not require real estate to be included has no tendency to show that the other list required in section 74, and which is the one that we have been considering, need not be a sworn list. It relates to a different situation and, if anything, tends rather to show that the other list must also be a sworn list. It follows that the action of the assessors in refusing to abate the taxes assessed for the years 1901 and 1902 was right because sworn lists were not filed as required by statute and that the finding of the superior court in favor of the petitioners for the amounts paid for those taxes and interest was wrong.

We also think that application for the abatement of the tax of 1901 was not made within six months of the date of the tax bill. The statute provides that 'the collector shall forthwith after receiving a tax list and warrant, send notice to each person who is assessed, resident or non-resident, of the amount of his tax.' Rev. Laws, c. 13, § 3. An examination of the corresponding sections of previous statutes shows that, in St. 1889, p. 1020, c. 334, § 1, of which the present provisions is a re-enactment the word 'notice' was substituted for the words 'taxbill' which had been the...