266 Mass. 145 | Mass. | 1929
This is an action of contract brought to recover the tax assessed upon shares of stock in the plaintiff bank for the year 1921. It is stated in the plaintiff’s bill of exceptions that “Exceptions taken by the defendant to the rulings” of the judge at a previous trial “were argued before the Supreme Judicial Court, and said exceptions were sustained. The opinion of that court is reported in” 259 Mass. 1, “and is incorporated into this bill of exceptions by reference. No new question has been raised since the first trial of the case. To carry up the Federal question raised, retrial was deemed necessary, because of the fact that under the terms of the rescript of the Supreme Judicial Court there could be no final judgment without rehearing. The Federal
Every question raised upon the record when the case was here before was discussed at large in the opinion then given. No argument has been addressed to us now not then considered and dealt with. The ground of the earlier decision was that, although the plaintiff might recover in this form of action a tax paid which was wholly illegal, this tax was not wholly illegal but merely excessive, and that full and complete remedy was afforded to the petitioner for every wrong of this nature by proceedings for abatement of the tax. The plaintiff now calls to our attention two decisions rendered by the Supreme Court of the United States since our earlier decision, First National Bank of Hartford v. Hartford, 273 U. S. 548, and Minnesota v. First National Bank of St. Paul, 273 U. S. 561. The principles declared by those decisions were fully recognized in our earlier opinion. Of course we are bound by those decisions and the principles there declared. We endeavored to follow them implicitly and demonstrate that they were not applicable to the facts here disclosed in view of the statutes and law of this Commonwealth which by a different procedure provide ample redress for the wrong complained of. We thought and still think that the plaintiff has mistaken its remedy and that it would have been afforded complete remedy for all the over-assessment alleged by proceedings for abatement. Burrill v. Locomobile Co. 258 U. S. 34. First National Bank of Greeley v. Weld County, 264 U. S. 450, 455. The plaintiff failed to comply with the imperative prerequisites of the statutes of this Commonwealth in order to secure an abatement. Hence its petition for abatement, considered with its case in 259 Mass. 1, was necessarily dismissed.
It is unnecessary to repeat or to summarize the reasons for the decision rendered when the case was here before. They are here adopted and affirmed as the basis of the present decision. On the authority of that case the result must be
Exceptions overruled.
