186 Mass. 361 | Mass. | 1904
This appeal from the refusal of the assessors of the city of Melrose to abate a tax was committed by the Superior Court to a commissioner to hear the parties and report the facts to that court. At the hearing before the commissioner the respondent requested him to report the evidence. The report contains a statement of the evidence, followed by a statement
1. The exceptions to the admission and exclusion of evidence by the commissioner do not seem to have been relied on at the hearing in the Superior Court and have not been argued here. We do not consider or pass upon them.
2. It was held in National Bank of Commerce v. New Bedford, 175 Mass. 257, that the judgment in matters of fact of a commissioner appointed under St. 1890, c. 127, § 5, now R. L. c. 12, § 80, is not open to revision in this court on exceptions. Therefore the only questions now open are the questions of law whether upon the evidence reported the commissioner’s findings were warranted, and whether upon the findings so far as warranted the petitioner was entitled to an abatement.
A preliminary question is raised by the petitioner, whether the report of evidence can be considered here. The statute provides for a report of the facts “ with or without the evidence.” The rule to the commissioner ordered him “ to hear the parties and report the facts to the court ”, and did not order him to report the evidence. We infer from the bill of exceptions that the court below treated the evidence as before it upon the commissioner’s report. ' As that court cóuld have recommitted the cause for a report of the evidence if it had seen fit, we have examined the case as if the rule had required a report of the evide'nce as well as of the facts.
The particulars in which the respondent contends that the find
The tax in respect of which the abatement was sought was one assessed on real estate as of May 1, 1902. It was incumbent on the petitioner to show that she seasonably filed a list of her property as required by statute. R. L. c. 12, §§ 41, 74. The report states that no evidence was offered as to whether or not the assessors issued or published any notice pursuant to R. L. c. 12, § 41. A list of the petitioner’s property as of the year 1902, upon a blank in the usual form, indorsed for filing “ Statement for the Taxable Year 1902 of Harriet E. Page ”, the petitioner, and sworn to by her on May 31, 1902, before one of the assessors, was in evidence, produced by the respondent. Besides this it appeared that the assessors had abated the sum of $22.36 from the petitioner’s tax as originally assessed. Taking into account the presumption that the assessors proceeded according to law in all their official doings, we are of opinion that the evidence justified the commissioner in finding that the petitioner duly brought in to the assessors a list of her real and personal estate as required by R. L. c. 12, § 41.
The principal contention that no sufficient application to the assessors for an abatement was shown is founded upon the contention that such applications must be in writing. The statutory provisions for abatement by the assessors are found in R. L. c. 12, §§ 73-76. The initial provision is that “ A person aggrieved by the taxes assessed upon him may . . . apply to the assessors for an abatement thereof.” There is no explicit requirement that the application shall be in writing. By § 74 if the applicant seeks an abatement of a tax upon real estate and has not included real estate in his list of taxable property brought in to the assessors under § 41 ■ “ he shall . . . file with his application a list ... of his real estate.” The words “ with his application ”, so far as we are informed, have been commonly considered to mean “ at the time of making his application ”, and have not been thought to carry any implication that the application itself must be in writing or be filed. The usual course of proceedings upon applications to assessors for abatement is entirely
The respondent also contends that if an oral application was sufficient there was no sufficient evidence that one was made. The weight of the evidence was for the commissioner. The partial abatement made by the assessors, the fact that interest was charged upon the tax bill only from January 20, 1903, and the letter of February 18, 1903, communicating to the petitioner’s agent the fact that the board of assessors had voted to take no action toward reducing the assessed valuation of her estate, were pregnant circumstances justifying the finding that the assessors were in fact applied to for an abatement within six months from the date of the tax bill.
The final contention of the respondent is that the appeal to the Superior Court was not seasonably entered. It was entered on April 6, 1903. Such appeals must be entered on the first return day after the expiration of thirty days from the giving of the written notice of the decision of the assessors. R. L. c. 12, § 78. If the written notice of their decision was the letter of February 18, 1903, the appeal .was seasonably entei'ed. Whether that letter was the written notice by the giving of which the time of entering the appeal was to be determined was a question of fact for the commissioner.
There was a request made to the commissioner for a ruling that on all the evidence the petitioner was not entitled to an abatement. So far as the exception to the refusal of this request involves the weighing of the evidence, or the drawing of inferences therefrom, the judgment of the commissioner cannot be revised here upon exception. National Bank of Commerce v. New Bedford, ubi supra. So far as the request involves questions of law they have been discussed already.
Exceptions overruled ; judgment affirmed.
