City of Charlestown v. County Commissioners of Middlesex

Wells, J. If the only question in these cases were “as to the reasonableness of the excuse of the several parties applying for an abatement of taxes,” for not having filed with the assessors a list under oath of their estate liable to taxation, “ within the time specified by the assessors for bringing it in,” we should have no hesitation in determining that the writs of certiorari ought to be refused. The conduct of the assessors seems to us to have been in a high degree reprehensible, and calculated to mislead if not to entrap parties liable to taxation. We see no ground in law for revising the decision of the commissioners in this respect; and we are satisfied that it was right in fact. But the commissioners did not merely decide that “ there was good cause why such list was not seasonably brought in.” Gen. Sts. c. 11, § 46. They held it to be good cause for not bringing in any list at all; and proceeded to entertain the complaint, and revise the assessment, although neither of the parties complaining had ever filed with the assessors the list, without which, the statute provides, “ no person shall have an abatement.” This was clearly wrong. The complainants contend, and the commissioners appear to have understood, that the proviso, permitting them to show good cause, applied to both branches of that section of the statute. But neither the language of the statute, nor the history of the legislation upon this point, furnishes any warrant for such a construction. The secondibrancb of the sec-, tian is based upon and intended to enforce compliance with 22 and 23 of the same chapter. The proviso is the same in effect as had been the construction of Rev: Sts. c. 7, § 40. Porter v. County Commissioners, 5 Gray, 365. It was also held, in the case cited, that St. 1853, c. 319, § 3, from which the first branch of Gen. Sts. c. 11, § 46, was taken, was an additional provision, and for a different purpose from Rev. Sts. c. 7, § 40; [90] that it did not “ touch the question of a right to appeal to the county commissioners.” In Otis Company v. Ware, 8 Gray, 509, it was held that the list required by the St. of 1853 could not be filed after the appeal had been made to the county commissioners; that “ the assessors had no jurisdiction to act in the matter without such sworn list, and of course no ground existed for a complaint” to the commissioners. The two provisions, St. 1853, c. 319, § 3, and Rev. Sts. c. 7, § 40, are brought together in one section in the St. of 1857, c. 306, § 3, and again in the Gen. Sts. c. 11, § 46. The change of the word “ until ” to “ unless,” in the General Statutes, is in conformity to and affirmance of the decision in Otis Company v. Ware. We are entirely clear that the first branch of the section is and was intended to be a peremptory and absolute denial of all right to have an abatement without first filing with the assessors the list under oath. Neither the assessors nor the commissioners can dispense with this requirement. Even when such a list has been filed, if it was not filed within the time specified by the assessors for bringing in the lists, a complaint to the commissioners can be maintained only when “ they are satisfied that there was good cause why such list was not seasonably brought in.” No proper lists having been filed in these cases, there was no foundation for the proceedings. The question of reasonable excuse did not arise. These are not cases of mere technical or formal defect or irregularity, in which this court may exercise its discretion, and grant or refuse the writ according to the demands of substantial justice and equity. As they are now presented, the proceedings of the county commissioners appear to be without authority of law and wholly void. As the reservation does not authorize us to make a final disposition of the cases here, they must stand over for further proceedings at the next term of the court for the county in which they are pending. At a subsequent hearing at April term 1869, before Morton, J., the respondents offered to show that the Tudor Ice Com91 pony, Lee, Kidder and Warren, both before and at the time of their applications for abatement, did in fact offer to make out and give schedules of their real estate upon oath, which the assessors declined to receive; and that they did make orally a statement under oath of their real estate, on their examination as witnesses before the commissioners and assessors. And they further offered to show, that in consequence of the form of notice published and given to the inhabitants by the assessors, requiring them to bring lists of their personal estates only, and also by reason of the form of blanks proposed by the assessors, and furnished to the inhabitants and other persons liable to be taxed, to be signed and sworn to, no schedules of real estate were rendered by any persons liable to be taxed in 1867; that, notwithstanding, abatements of taxes on real estate to a large amount were made to many such persons by the assessors; that, by reason thereof, the said Company, Lee, Kidder and Warren were taxed at more than their just proportion; and that therefore the petitioners ought not to have the benefit of the writs prayed for, when, upon a full hearing of all the facts, it appeared that substantial justice had been done. And on behalf of Lee it was contended that, in any event, he was entitled to an abatement of the tax on his personal property, under the St. of 1865, c. 121. At the request of the respondents, the judge reserved the cases for the determination of the full court; and they were argued at January term 1870, by the same counsel. Wells, J. The questions, now raised and discussed by the petitioners, were fully argued at the former hearing, and substantially decided. The limited form of the reservation, at that time, alone prevented the final disposition of the cases. We do not perceive anything, as they are now presented, to modify our conclusions, or change the result then indicated. The conduct of the assessors afforded “ good cause why such list was not seasonably brought in.” But that only removes the objection against any appeal from the judgment of the assessors, by complaint to the county commissioners; and presupposes that the proceedings have been commenced by a proper application to [92] the assessors. The filing of a list, subscribed and sworn to bj the applicant, is essential to such an application. The assessors have no authority to make an abatement without it. Their refusal affords no ground of complaint to the commissioners. It follows that an “ offer to make out and give schedules of their real estate upon oath, which the assessors declined to receive,” and the fact that “ they did make orally a statement under oath of their real estate, on their examination as witnesses ” before the assessors, will not answer as a substitute for the formal list. There are obvious reasons why such a list should be filed as the preliminary step in all proceedings for an abatement. But it is sufficient that the statute requires it. As the proceedings of the county commissioners are invalid, by reason of a defect which deprives both them and the assessors of all jurisdiction in the matter, the court have no occasion to consider whether substantial justice- has been done in the premises or not. The case of Lee, in regard to a tax on personal estate, stands in the same position with the rest. If he had no taxable personal estate, this tax is illegal, and he has his remedy in another mode. If he seeks his remedy by an application for an abatement, he can have it only by compliance with the conditions which the statute has imposed. The St. of 1865, c. 121, does not change those conditions, nor provide a new mode of proceeding. It merely limits the amount of abatement which the assessors are authorized to make. Writs of certiorari to issue.