This petition for the abatement of a tax upon personal property is filed under R. L. c. 12, § 78. Section 77 of the same chapter, after providing that a person aggrieved by the
The list referred to is the list of his estate not exempt from taxation which, in response to a notice of the assessors, every taxpayer is required to hand in to the assessors. No list of any kind was handed in as required by the assessors until long after the time specified in the notice. It is not contended by the petitioners that the assessors found that there was either a reasonable excuse or good cause for the delay; and the appellate court has expressly found that “ the petitioners have not shown a reasonable excuse for their delay in not filing a list of personal property within the time specified in the notice given by the assessors for the bringing in of lists, and that there was no good cause for their delay in not doing so.” One of the grounds of the defense is that this finding of the appellate court constitutes a bar to the granting of any relief by that court to the petitioners.
Shortly stated, the question is whether, in a complaint filed under R. L. c. 12, § 77 or § 78, the appellate board can make any abatement of a tax where the complainant has not brought in to the assessors a list as required by § 41 of that chapter within the time specified in the notice, and is not found, either by the assessors or by the appellate board or court, to have had any reasonable excuse or good cause for the delay. Although the precise language of the section would seem to be quite decisive, still, inasmuch as the petitioners have made an elaborate argument, based as well upon a laborious comparison of the statutes past and present as upon other considerations, to the effect that the
It is useful to look into the history of the legislation so far as it relates to the matters involved in the question. In the colony laws there does not seem to have been any provision for the furnishing of lists : and it was provided that if a taxpayer could satisfy the assessors that he was “ overvalued ” he, in the quaint language of the times, could be “ eased ” by them, and if they refused he could appeal to the county court; Mass. Col. Laws, (Whitmore’s ed.) 23; Anc. Chart. 69, 70; and in the early part of the provincial period, with the exception of the provision contained in the special tax act of 1692-3, c. 41, §§ 5, 6, 1 Prov. Laws, 93, 94; 1694-5, c. 2, §§ 5, 6, 1 Prov. Laws, 167, 168, the law as to the right of abatement seems to have continued substantially the same. Prov. St. 1692-3, c. 28, § 6 ; 1 Prov. Laws, 66. (Also Anc. Chart. 250.) Prov. Sts. 1692-3, c. 41, § 2; 1699-1700, c. 26, § 8; 1 Prov. Laws, 92, 408. See also Prov. Sts. 1697, c. 6, § 5; 1697, c. 23, § 6 ; 1698, c. 15, § 5 ; 1698, c. 24, § 9; 1699-1700, c. 14, § 6 ; 1 Prov. Laws, 281, 305, 340, 362, 387. But as early as 1715 the annual or special tax acts provided that the assessors before making the assessment should call upon the inhabitants to bring in “ true and perfect lists of their polls and rateable estate,” and imposed a fine upon any one who should bring in a false list; and this form of legislation continued for a number of years. The bringing in of such a list however was not made a condition precedent to a right to an abatement, either by the assessors or by the county court. Prov. St. 1715-16, c. 11, §§ 4, 5 ; 2 Prov. Laws, 22. See also, among others, Prov. Sts. c. 1716-17, c. 12, §4; 1717-18, c. 7, § 4 ; 1718-19, c. 13, § 5 ; 1719-20, c. 7, § .4; 1720-21, c. 4, § 4 ; 1721, c. 4, § 4; 1722-3, c. 8, § 4; 1723-4, c. 8, § 4; 1728-9, c. 14, § 4; 1734-5, c. 13, § 5 ; 2 Prov. Laws, 57, 85, 117, 148, 179, 217,256, 298, 515,735. Compare Prov. St. 1730, c. 1; 2 Prov. Laws, 549.
But in Prov. St. 1735-6, c. 13, § 5 ; 2 Prov. Laws, 780, there came a radical change. The section is so significant upon the question before us as to justify a liberal quotation of its exact language:
The language is plain and unambiguous. While it gives the right of appeal from the judgment of the assessors as to the question whether a list is true or false, it distinctly says a person who does not bring in a list shall not be admitted to apply to the court of sessions for an abatement. The refusal of the right to go to the court of sessions for an abatement is accentuated by the fact that upon the question whether a list is false there is an appeal to that court. The whole question of appeal to the court from the judgment of the assessors was before the law-making power and the rights were carefully separated and distinctly defined. Upon one question there was the right of appeal; on the other there was none. Probably the assessors, at least before the committal of their warrant to the tax collector, could have “ eased ” a taxpayer if they were satisfied that he was “ overvalued ”; and in considering this question the law presumes that they would act, not capriciously or without restraint, but according to their best judgment and under the obligation of their official oath. But whether their decision
Thus continued the law for half a century ; and every annual tax act, and every special tax act (so far as disclosed by an examination intended to be reasonably thorough), contained a clause substantially like the one we have just been considering. Prov. St. 1735-6, c. 13, § 5; 1736-7, c. 7, § 5; 1737-8, c. 14, § 5; 1740-41, c. 8, § 5; 2 Prov. Laws, 780, 812, 903, 1034 et passim. Prov. Sts. 1743-44, c. 9, § 5; 1744-5, c. 9, § 5 ; 1748-9, c. 1, § 5 ; 1756-7, c. 1, § 5; 3 Prov. Laws, 99, 167, 401, 977 et passim. Prov. Sts. 1757-8, c. 2, § 5 ; 1758-9, c. 1, § 5; 1759-60, c. 2, § 5; 1760-61, c. 11, §5; 1766-7, c. 6, § 5 ; 1767-8, c. 8, §5; 4 Prov. Laws, 16, 155, 262, 397, 898, 972 et passim. Prov. Sts. 1769-70, c. 1, § 5; 1770-71, c. 7, § 7 ; 1774, c. 8, § 5; 1777-8, c. 13, § 7; 1779-80, c. 12, § 7; 1780, c. 16, § 8; 5 Prov. Laws, 19, 105, 408, 758, 1112, 1432. St. 1780, c. 43. St. 1781, c. 16, c. 28. St. 1782, c. 65. St. 1784, c. 25.
It may be remarked in passing that an examination of the provincial statutes above cited shows conclusively that the idea expressed by Metcalf, J., in giving the opinion of the court in Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477, 481, that “ by the provincial statutes ... a party, aggrieved at the sum apportioned on him by assessors, and being refused an abatement by them, might appeal to the sessions for an abatement, in all cases, as a matter of right,” was erroneous so far at least as respects the law after 1735.
The next material change was made by the general statute of 1785, c. 50, § 9, which, after the usual provision for the bringing in of a list to the assessors, provided further that “ if any person or persons, shall not bring in a list of their estates, as aforesaid, to the assessors, he, she, or they so neglecting or refusing, shall not be admitted to make application to the Court of General Sessions of the Peace, for any abatement of the assessment so laid on him, her or them ; unless such person or persons shall make it to appear to the said court, that it was not within the power of him, her, or them, to deliver to the assessors respectively, a list of his, her, or their rateable estate, at the time appointed for that purpose.” The change made by this statute was not against the taxpayer but was manifestly in his favor. It is to be noted
Except for the substitution of county commissioners for the Court of General Sessions of the Peace as the appellate board, thus stood the law until the Revised Statutes. By Rev. Sts. c. 7, § 40, it is provided that “ No person shall have any abate* ment made by the commissioners, unless he shall have brought in a list of his estate to the assessors, or shall show good cause for not having so done, and unless he shall, if required by the assessors, have made oath to the truth of the same.” As originally reported by the commissioners on the revision of the statutes it read thus: “ No person shall be entitled to have any abatement made, either by the assessors, or county commissioners, or other officers mentioned in the preceding section [meaning other public officers in the respective counties who by law exercise the powers of county commissioners] unless he shall have brought in a list of his estate to the assessors, or shall show good cause for not having so done.” Report of Commissioners on Rev. Sts. c. 7, § 42. In a note to this section the commissioners say that “This provision is submitted for the purpose of removing an ambiguity in the existing law — that is, whether the present act, (1785, c. 50, §§ 9, 10,) which denies abatements in cases where lists are not brought in, authorizes both assessors and county commissioners, or only the latter, to refuse abatements in such cases.” The legislative committee to whom the whole report of the commissioners was referred for consideration recommended that the following amendments be made, namely, first that the clause “ or other officers mentioned in the preceding section ” be stricken out, and by adding at the end of the section “and unless he shall, if required by the assessors, have made oath to the truth of the same.” Both amendments were adopted, the first probably because there were
In Winnisimmet Co. v. Assessors of Chelsea, 6 Cush. 477, it seems to have been thought that under the provisions of this statute it was in the power of the assessors to make an abatement if seasonably asked for, although no list had been carried in. “But,” say the court, “ after they have refused to make an abatement, the provision is peremptory, that it shall not be made by the county commissioners, (the Court of Common Pleas, in the present cases,) unless a list has been carried in, and sworn to, if required. If a party intends to enter upon a litigation, he must prepare himself by taking the prerequisite measures prescribed by the statute.” See also Porter v. County Commissioners, 5 Gray, 365, for a full discussion of this subject. It was argued by the petitioners in that case that under St. 1853, c. 319, § 3, it was sufficient to sustain an appeal if the list was given at any time before the application for an abatement. But it was said by Shaw, C. J. (p. 368) : “ This argument is plausible, but we think not sound. It overlooks a distinction, kept up in these provisions for taxation, between the power of the assessors to abate the tax of an individual, and the right of such individual to appe'al from the decision of the assessors to a tribunal, to some extent judicial, originally the court of sessions, now the
In Gen. Sts. c. 11, § 46, the law is stated thus: “ No person shall have an abatement unless he has filed with the assessors a list subscribed by him of his estate liable to taxation, and made oath that it is full and accurate according to his best knowledge and belief. When such list is not filed within the time specified by the assessors for bringing it in, no complaint from the judgment of the assessors shall be sustained by the county commissioners, unless they are satisfied that there was good cause why such list was not seasonably brought in.” In Charlestown v. County Commissioners, 101 Mass. 87, 90, it was held that the first branch of this section 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,” and that under the second branch, even when such a list is filed, if it is not filed within the time specified by the assessors for bringing in the lists, a complaint can be maintained before the county commissioners only when “they are satisfied that there was good cause why such list was not seasonably brought in.”
St. 1865, c. 121, providing that, where the list is not filed within the time specified in the notice, the assessors shall not afterwards abate any part of the tax on personal estate unless the tax exceeds by more than fifty per cent the amount which would have been assessed if the list had been seasonably brought
Gen. Sts. c. 11, § 46, was re-enacted in Pub. Sts. e. 11, § 72, but with the addition of these words, “and except in cases provided for in the following section.” The “ following section ” is substantially like St. 1865, c. 121, except that in the place of the words “ they [the assessors] shall not afterwards abate any part of the tax ” are found the words “ no part of the tax . . . shall be abated.” That is to say, the clause applying expressly to the assessors is apparently changed to a clause applicable to any tribunal having jurisdiction of a complaint for abatement. And it is argued with force by the petitioners that under these two sections, namely, §§ 72, 73, a taxpayer had on appeal the same right to be heard by the county commissioners as originally by the assessors, even if he had filed no list within the time prescribed by the notice. As thus construed these two sections would have made a great change in the right of the taxpayer to appeal from the assessors as it had existed in the Province and Commonwealth ever since 1735. These two sections were enacted exactly as reported by the commissioners on the Public Statutes, and there is nothing in their report to show that they intended to change the previous law on this subject. But it is unnecessary to consider whether the view of the petitioners as to the true construction of these two sections is correct. The language of the sections of R. L. c. 12 upon which the case turns is very different.
By § 74 of that chapter it is provided that no person “ shall . . . have an abatement, except as otherwise provided, unless he has brought in to the assessors the list of his estate as required by” the notice. And if the list is not filed within the time
There can be no doubt that by the express language of R. L. c. 12, § 77 and 78, when considered in connection with the other provisions of the same chapter and read in the light of previous legislation upon the subject, the county commissioners have no power to abate a tax where the list was not brought in within the time specified in the notice given by the assessors before making the assessment, unless either the assessors or the county commissioners find that there was good cause or reasonable excuse for the delay. The Superior Court has simply the same jurisdiction as the county commissioners (§ 78). It follows that upon the facts found in this case, as hereinbefore stated, the petition should be dismissed.
It becomes unnecessary to consider the other grounds of defense. According to the terms of the report “ judgment is to be entered upon the finding in favor of the respondents, with such costs and expenses as they may be entitled to, to be taxed by the Superior Court”; and it is So ordered.