Trustees of Amherst College v. Assessors of Amherst , 193 Mass. 168 ( 1906 )

Morton, J.

These are four petitions for the abatement of taxes assessed upon real estate of the petitioners in the town of Amherst by the assessors of Amherst for the years 1901, 1902, 1903 and 1904. Abatements were refused by the assessors and thereupon the taxes were paid under protest and appeals taken to the Superior Court. The cases were heard together by a judge without a jury. The petitioners contended in each case that the'property was exempt from taxation. The judge found for the petitioners in each case and ordered judgment against the inhabitants of the town for the amount paid, with interest, and by agreement of parties reported the cases to this court; judgment to be entered on the findings if correct, otherwise such judgments to be entered as the court should deem proper.

The respondents contend generally that the property was rightly assessed. They contend further in regard to the taxes assessed for the years 1901 and 1902 that the lists filed by the petitioners were not sworn to, and the judge found, as a fact, that they were not. They contend still further in regard to the tax for the year 1901 that the application for abatement was not made within six months after the date of the tax bill.

We take up first these formal matters, assuming, without deciding, that the provisions of the Revised Laws in regard to abatements apply to the tax* of 1901 though it was assessed before they went into effect. Some contention is made by the petitioners that the evidence, which is stated in the report, did not warrant a finding that the lists of 1901 and 1902 were not sworn to. But we deem it enough to say of this contention that the finding appears to us to have been clearly warranted by the evidence. The question remains on this branch of the case as to the effect of the finding on the right of the petitioners to an abatement of the taxes for those years.

The petitioners concede that previous to the Revised Laws the filing of a sworn list was a condition precedent to an abatement (Otis Co. v. Ware, 8 Gray, 509; Charlestown v. County Commissioners, 101 Mass. 87); but they contend that this has been changed and that now the list need not be sworn to unless required by the assessors; in other words, that the sworn list, which was formerly compulsory, is now optional with the assessors. They rely, for this contention, on the fact that the list to be furnished is that required by § 41 of R. L. c. 12, and that there is no express provision in that section as there was in the corresponding section in the Public Statutes (c. 11, § 38), that the list shall be sworn to. They also rely upon the fact that a verification on oath of the list is expressly required in the case of an applicant for abatement of his real estate tax when the notice did not require real estate to be'included in the list brought in by the taxpayer. But it is manifest we think that the list required in § 41 is a sworn list. It is the list which taxpayers are to bring in in accordance with the notice which the assessors are required to post. And § 43 provides that “ The assessors shall in all cases require a person bringing in a list to make oath that it is true,” meaning, as we think, that the list referred to in § 41 when brought in shall be sworn to, and that the assessors or their secretary or head clerk may administer the oath, and that, until sworn to, it is not the list which the taxpayer is required to bring in. The omission from § 74 of R. L. c. 12 of the requirement of an oath was no doubt for the purpose of condensation and is immaterial so long as the list required by § 41 is a sworn list. The section (§ 74) is as reported by the commissioners, except that the numbering has been changed, and they make no reference to any change in the law in regard to a sworn list as intended or desirable. See Report of Commissioners for consolidating and arranging the Public Statutes, c. 12, § 76. The provision for a sworn list where the notice does not require real estate to be included has no tendency to show that the other list required in § 74, and which is the one that we have been considering, need not be a sworn list. It relates to a different situation, and, if anything, tends rather to show that the other list must also be a sworn list. It follows that the action of the assessors in refusing to abate the taxes assessed for the years 1901 -and 1902 was right because sworn lists were not filed as required by statute, and that the finding of the Superior Court in favor of the petitioners for the amounts paid for those taxes, and interest, was wrong.

We also think that application for the abatement of the tax of 1901 was not made within six months after the date of the tax bill. The statute provides that “ The collector shall forthwith, after receiving a tax list and warrant, send notice to each person who is assessed, resident or non-resident, of the amount of his tax.” R. L. c. 13, § 3. An examination of the corresponding sections of previous statutes shows that, in St. 1889, c. 334, § 1, of which the present provision is a re-enactment, the word “ notice ” was substituted for the term “ tax bill ” which had been the word used hitherto, but the term “ tax bill ” was still retained in the provision relating to an application for an abatement. R. L. c. 12, § 73. Manifestly as there used it has reference to the notice which the collector is required to send to each taxpayer of the amount of his tax. In the present case the notice that was sent consisted of a postal card which bore on its face the address, “ Amherst College, Amherst, Mass.,” with the postmark “ Amherst Mass., July 17, 1901” and on the back the words printed and written that are printed in the footnote.^* We think that this constituted a tax bill within the meaning of the statute. It contained the amount due, for what and from whom and to whom due and where and when to be paid. It was not dated by the collector, but the postmark showed when it was sent out and that was a sufficient date. The application for abatement was not made till March 22, 1902, which was clearly too late.

There remain the taxes for the years 1903 and 1904. In regard to these the only question is whether the several parcels of real estate for which the petitioners were assessed were or were not exempt from taxation. The principles of law applicable to cases of this kind have been recently stated and applied in several cases and it is not necessary to restate them. Emerson v. Milton Academy, 185 Mass. 414. Phillips Academy v. Andover, 175 Mass. 118. Harvard College v. Cambridge, 175 Mass. 145. Amherst College v. Amherst, 173 Mass. 232. Williams College v. Williamstown, 167 Mass. 505. Mount Hermon Boys’ School v. Gill, 145 Mass. 139. Massachusetts General Hospital v. Somerville, 101 Mass. 319. Applying the rules thus laid down we think that the presiding judge was warranted in finding upon the facts before him that of the parcels for which the petitioners were assessed in 1903 and 1904, the President’s House, Todd House, Hallock Grove, Blake Field and Woodside Lot were owned and occupied by the college for the purposes for which it was incorporated and were therefore exempt from taxation. Emerson v. Milton Academy, ubi supra. Harvard College v. Cambridge, ubi supra. With respect to the “ Parsons Street Property ” as it is called in the petition for the abatement of the taxes of 1903, or “ Parsons Street House ” as it is called in the petition for the abatement of the taxes of 1904, both descriptions meaning, we assume, the same property, the case stands differently. This property consists of a house assessed at $800, a barn at $300 and land at $700, and is situated a short distance in the rear of the President’s House without any fences or other indications of boundary or division between the two properties. The house was built during President Stearns’s time, which was from 1854 to 1876, for a servant of his who was a janitor of the college for many years during which he lived in the house. In 1901 and 1902 the house was rented to a man who was not an employee of the college at $35 a quarter. For aught that appears it was so occupied in 1903 and 1904. The barn is used by the president for storage purposes. The land assessed with the house consists of half an acre which is the size of the average house lot on that street. It is the use of the property at the time when the tax is assessed which determines whether it is exempt from taxation or not. And it is plain it seems to us that neither in 1903 nor 1904 was this property occupied by the college or its officers for the purposes for which the college was incorporated.

The result is that the petitions for the abatement of the taxes assessed for the years 1901 and 1902 must be dismissed with costs and judgment entered for the petitioners for the amounts paid for the years 1903 and 1904 less the taxes on the Parsons Street Property, with interest, on the amounts thus ascertained and with costs.

So ordered.

* The words printed and written on the back of the card were as follows:

Tax Collector’s Notice.

M...... Amherst College

Tour town county & state taxes for 1901 are $1542.60 Watering Streets 17.50

Taxes are now payable at the collector’s office Interest added after October 10, 1901.

C. H. Edwards, Collector town of Amherst, Mass.