313 Mass. 722 | Mass. | 1943
This is a petition in equity filed in the Probate Court of Norfolk County by Wellesley College, which was incorporated by St. 1870, c. 85, for the purpose of establishing and maintaining “an institution for the education of youth” and which, pursuant to the said statute and subsequent statutes in amendment thereof, has maintained an institution for the higher education of young women. The petitioner seeks instructions as to whether or not it is subject to the provisions of St. 1941, c. 729, § 17, inserted in G. L. (Ter. Ed.) as c. 64B, which by § 2 imposes a tax on meals amounting to $1 or more that are “furnished at any restaurant, eating house, hotel, drug store, club, resort or other place at which meals or food are regularly served to the public.” The respondents are the Attorney General and the commissioner of corporations and taxation. The former filed an answer to the effect that he submitted his rights in the matter to the determination of the court. The commissioner filed a demurrer and an answer. The demurrer was overruled, and the petition was then heard on the merits. The judge, without entering a decree, reported and reserved the suit in accordance with G. L. (Ter. Ed.) c. 215, § 13, for the determination of this court.
The college is a charitable corporation and all its property
All but fifty or sixty students live in the college dormitories. The resident students pay a fixed fee, which includes board, room and tuition. No part of this fee is allocated to any one of these three items. Board and rooms are included in the lump sum contracts made with the resident members of the faculty. Nonresident students may purchase lunch
The first question presented is whether the Probate Court
Property conveyed unconditionally to a charitable corporation is impressed with a trust for the accomplishment of the corporate purposes, and, if it could be said a trust in accordance with the terms and conditions of the charter was created upon the receipt of the property, then we are brought back to the inquiry whether the charter is a written instrument within the clause, “to trusts created by will or other written instrument,” as contained in G. L. (Ter. Ed.) c. 215, § 6, as amended. The words “or other written instrument” were added to Pub. Sts. c. 141, § 27, by St. 1892, c. 116, by inserting them after the words “to trusts created by will,” and the statute, as amended, provided that Probate Courts may “hear and determine in equity all matters in relation to trusts created by will or other written instrument not particularly mentioned in this chapter, and shall have jurisdiction over all matters relating to the termination of trusts under wills, deeds, indentures, or other instruments.” This provision, so far as it related to the termination of trusts, came from St. 1880, c. 163, which gave the Probate Court original concurrent jurisdiction with this court in reference to the termination of such trusts. “Other instruments” as used in this last mentioned statute and in Pub. Sts. c. 141, § 27, up to the time of its amendment by St. 1892, c. 116, must be interpreted to mean written instruments of the same kind and nature as those specifically enumerated, and to signify an
The purpose of St. 1892, c. 116, was to extend the equity jurisdiction of the Probate Courts over the same classes of trusts as those over which they already had jurisdiction in reference to their termination, and when Pub. Sts. c. 141, § 27, was amended by St. 1892, c. 116, the Probate Courts had equity jurisdiction over matters relating to trusts created by will or other written instrument, and “to the termination of trusts under wills, deeds, indentures, or other instruments.” The term instrument in this section before the amendment meant, as we have already said, a document like a will, deed or indenture, and it continued to have the same meaning after the amendment. And the word instrument in the clause “or other written instrument,” which was added by the amendment, for the purpose already stated should receive the same meaning as that word already had in the statute prior to the amendment. “Where words are used in one part of a statute in a definite sense it may be presumed, in the absence of a plain intent to the contrary, that they are used in the same sense in other places in the same act.” Gillen’s Case, 215 Mass. 96, 98. Gagnon’s Case, 228 Mass. 334, 338. Bay State Street Railway v. Woburn, 232 Mass. 201, 203. Hood Rubber Co. v. Commissioner of Corporations & Taxation, 268 Mass. 355, 357. Animal Rescue League of Boston v. Assessors of Bourne, 310 Mass. 330, 336.
We therefore conclude that the words “or other written instrument” as they appear in G. L. (Ter. Ed.) c. 215, § 6, as amended, do not include a statute or the special act by which the petitioner was incorporated.
There is another reason why the petition cannot be maintained. It is true that trustees of a trust may bring a petition for instructions and secure the opinion of the court upon
This petition merely seeks to settle a controversy between the petitioner and the commissioner. The latter makes no claim under any trust nor contends that any of the trust property is not being properly administered. He asserts no claim in the trust property. He is in no way concerned with any fiduciary character of the college. The liability to the tax depends not upon the capacity in which the petitioner holds its property but upon whether it is engaged in transactions upon which the excise is imposed. Perhaps it should be pointed out that the tax, if imposed, is not a charge upon or payable out of trust funds. The amount of the tax is paid by the purchaser of the food, and, if the petitioner is liable for the tax, the fact that it is required to collect and forward the tax to the commissioner would not be sufficient ground upon which it could base an exemption from the tax even though it may incur additional ex
All that the commissioner contends is that the college, if it serves meals for which it is paid $1 or more, is required to register and pay the tax provided by G. L. (Ter. Ed.) c. 64B. The petitioner does not challenge the validity of the taxing statute nor pray for an injunction against the commissioner. What the petitioner seeks and all that it seeks is an answer to the question whether the claim of the commissioner is sound. This is not a case where the liability of a fiduciary to pay a tax depends upon a construction of the trust instrument and the determination of the interests that passed thereunder to the beneficiaries. Pratt v. Dean, 246 Mass. 300, 307. Saltonstall v. Treasurer & Receiver General, 256 Mass. 519. Here, the incidence of the tax is not dependent on the terms of any trust or upon the powers and duties of the trustee. The taxable event is the furnishing of meals to the public in certain circumstances. That the petition cannot be considered as a petition for instructions is settled by Treadwell v. Salisbury Manuf. Co. 7 Gray, 393.
The Legislature has not conferred any power upon the Probate Courts to determine the liability of a fiduciary to the meal tax, as it has done in reference to the succession tax. G. L. (Ter. Ed.) c. 65, § 30. It is only in exceptional cases that a court of equity will interfere with the assessment and collection of taxes. Maley v. Fairhaven, 280 Mass. 54. Proprietors of the Cemetery of Mount Auburn v. Unemployment Compensation Commission, 301 Mass. 211. Compare Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275.
Petitions for instructions are proceedings in equity and are not on the probate side of the court. They have been referred to as being in the nature of bills of interpleader. Burroughs v. Wellington, 211 Mass. 494. Stowell v. Ranlett, 238 Mass. 599. Bills of interpleader by trustees to determine whether they are taxable in one town or in another
If the petition could be considered as brought under G. L. (Ter. Ed.) c. 215, § 6B, as inserted by St. 1935, c. 247, for the rendition of a declaratory judgment, the result would be the same. This section does not extend the jurisdiction of the Probate Courts but authorizes the entry of declaratory judgments only in cases and matters over which jurisdiction has been conferred upon these courts. Geen v. Old Colony Trust Co. 294 Mass. 601. Jones v. Jones, 297 Mass. 198.
Although, for reasons already discussed, the liability of the college to the meal tax, so called, is not properly presented for decision, we think that, in view of the public interest involved and the uncertainty and confusion now existing among educational institutions and various charitable associations as shown by this record, we ought, as was done in Treadwell v. Salisbury Manuf. Co. 7 Gray, 393, Trustees of Smith Charities v. Northampton, 10 Allen, 498, and Moore v. Election Commissioners of Cambridge, 309 Mass. 303, to express briefly our opinion upon the question that has been argued.
The meal tax law, so called, G. L. (Ter. Ed.) c. 64B, inserted by St. 1941, c. 729, § 17, imposes an excise or “taxable charge” of five per cent of the amount charged for all meals that cost the purchaser $1 or more “furnished at any restaurant, eating house, hotel, drug store, club, resort or other place at which meals or food are regularly served to the public.” The taxpayer is defined as the person, which includes a corporation, fiduciaries and receivers, who makes such a taxable charge. Such a taxpayer is required to regis
The taxing statute is entitled “Excise upon Charges for Meals served to the Public,” and correctly sets forth the scope of the enactment. It indicates that the excise is levied upon meals served to the public at places that are open and available to those members of the public who have a right to enter and be served with food for which the agreed compensation is to be paid. The description of the places at which the meal is furnished emphasizes the thought that the meal must be served at a restaurant, eating house, hotel, drug store, club, resort, "or other place at which meals or food are regularly served to the public.” The college does not maintain any place that will fit the description of any of those places specifically mentioned. The nearest approach to anything mentioned in the taxing statute is the serving of meals in the dining room at the Horton House to certain members of the Horton Club, so called, who move into one of the three apartment houses after the summer vacations begin and leave before the beginning of the academic year. Furnishing food to a comparatively small group of tenants for a short period of time is not serving food to the public within the meaning of the statute. The dining accommodations at the college are not open to the public. They are restricted to a small, well defined number of classes to the members of which they are avail
Demurrer sustained.
Petition dismissed.