289 Mass. 602 | Mass. | 1935
This is a petition for a writ of mandamus to compel the board, of assessors of Boston to issue to the petitioner a certificate under G. L. (Ter. Ed.) c. 59, § 70, to the effect that thé tax for the year 1933 has been abated upon premises on Congress Street in Boston occupied by the' petitioner as a' tenant “paying taxes in full on said premises.” The single justice ordered “that the petition be dismissed as a matter of law and not as a matter of discretion,” and reported the case.
We assume in favor of the petitioner that it was “A person aggrieved” and therefore entitled to apply to the assessors for an abatement under G. L. (Ter. Ed.) c. 59, § 59, in the amended form appearing in St. 1933, c. 266,. § 1, and that if an abatement has in fact been granted it is entitled by means of this proceeding to obtain a certificate thereof "from the present assessors under said § 70. The order of the single justice is to be construed as a ruling that as matter of law there was no evidence which would justify the issuance of the writ.. It follows that the sole question for decision is whether there is anything in the single justice’s findings of subsidiary facts and in the evidence reported which would justify an ultimate finding that the assessors have abated the tax.
The facts and evidence reported, in their aspect most favorable to the petitioner, may be summarized as follows: On December 29, 1933, the petitioner duly filed with the assessors its application for abatement on the usual form provided by the assessors. At that time the members of the board were Neal J. Holland, Henry Daily and Edward T. Kelly. The "secretary of the board was Frederick E. Bolton. On the day on which the petition was filed “a hearing was held”, before Holland and Daily. Kelly, who
It is a general rule that where a public board is required to act through votes at meetings and to keep records of its acts, the record duly kept cannot be varied or added to by other evidence. Halleck v. Boylston, 117 Mass. 469. Morrison v. Lawrence, 98 Mass. 219, 221. Lowell v. Wheelock, 11 Cush. 391. State v. Crookston Lumber Co. 85 Minn. 405. Sweetsir v. Chandler, 98 Maine, 145, 152. Compare Commonwealth v. McGarry, 135 Mass. 553, 554; Garvey v. Lowell, 199 Mass. 47. See cases collected in 50 L. R. A. (N. S.) 99. Like other aspects of the so called paroi evidence rule, this is a rule of substantive law and not a part of the law of evidence. It forbids proof of acts of the board by any evidence other than the record. Records of the meetings of December 29 were in evidence, but they did not show any vote to abate the tax. There was nothing to show that the notation made by Holland or the stamp or the last paragraph of the petitioner’s application signed by the secretary and quoted above was a part of a record of a meeting. It cannot be assumed without evidence that such entries on an application filed with a board are a part of the record of the acts of the board at a meeting. Nor are these entries a record of an abatement which is
No record has been produced of action by the board, and therefore we can find nothing in the case which would support a finding that the assessors have abated the tax.
Petition dismissed.