G. L. c. 59, § 64]

as are employed in any other proceedings in which the valuation of property is in issue.3

In the case of a tax upon the real estate and machinery of a domestic corporation, the valuation put upon it by the tax commissioner in fixing the franchise tax is not conclusive upon the corporation. The franchise tax and the local tax are not necessarily complementary. The right to have an excessive tax abated is a general one and is not taken away by the fact that a public officer having a different end in view has adopted the valuation sought to be revised."

A person assessed is not required to pay his tax as a condition precedent to an appeal to the county commissioners.10 If a taxpayer is found to be overrated and an abatement is made, either by the assessors or by the county commissioners, the abatement is not in itself a judgment for money and it is not returned to a court and cannot be entered in any court, either by the taxpayer or by the authority which makes the abatement. If the tax has not been paid it gives no right to ask for the payment of money, but merely the right to discharge the tax by the payment of less than the amount assessed. If the tax has been paid. the taxpayer has the right to be reimbursed out of the treasury of the city or town to the amount of the abatement, and he is also entitled to a certificate of the abatement. But this certificate cannot be entered in court and no court can make up a judgment upon the certificate alone. If the city or town should refuse to reimburse him he might maintain an action at law against it based upon the breach of the statutory obligation to reimburse, and obtain judgment upon establishing in court all the facts essential to his right of recovery of which the making

8 Thus in Haven v. Essex County Commissioners, 155 Mass. 467 (1892), it was held that on a petition for abatement of a tax on real estate evidence of sales of neighboring land similarly situated is admissible, but not the mere opinion of assessors or appraisers. Evidence as to the value of land in a remote part of the state resembling land in question only as being on seashore is inadmissible, even in the guise of cross-examination or of giving reasons for witness's opinion. In National Bank of Commerce v. New Bedford, 175 Mass. 257 (1900) it was held that in determining the value of shares of stock, newspapers purporting to contain stock quotations are inadmissible. The fact that an expert may use hearsay as a ground of opinion does not make the hearsay admissible. In Massachusetts General Hospital v. Belmont, 233 Mass. 190 (1919) it was held that returns by a corporation showing a valuation upon its real estate are admissible against it.

9 Tremont & Suffolk Mills v. Lowell, 178 Mass. 469 (1901).

10 Milford v. Worcester County Commissioners, 213 Mass. 162 (1912).

[G. L. c. 59, § 64 of the abatement is one." In this respect there is a difference between abatements by the assessors or the county commissioners and abatements by the superior court,12 for in the latter case prepayment is always required, and the abatement itself operates as a judgment.

To entitle a taxpayer to prosecute an appeal from the refusal of the assessors to abate his tax, he must have brought in his list within the time prescribed by the assessors or be able to show good cause for his delay.13 There is a marked distinction, which is often overlooked, between the rights of a taxpayer who has failed without reasonable excuse to bring in his list within the prescribed period, on petition to the assessors, and his rights under like conditions on appeal. If the assessors are satisfied that the taxpayer was overassessed they are bound to make an abatement, even if without reasonable excuse he failed to seasonably bring in his list, and to reduce his assessment to the true value of his taxable property, plus fifty per cent as a penalty for his delay in bringing in his list. But if for any reason the applicant fails to convince the assessors that he has been overassessed, no matter how arbitrary or unreasonable their attitude may be or how grossly the assessment exceeds the fair value of his taxable property, if he can show no good cause for his failure to bring in his list within the designated period, he is wholly precluded from prosecuting an appeal."

14

Decisions of the county commissioners on questions of fact are final,15 but decisions on questions of law are subject to review. The proper remedy of the party aggrieved is to apply to the supreme judicial court for a writ of certiorari, which is the established method for correcting errors in law of a body acting judicially but whose procedure is not in accordance with the course of the common law and which is highly appropriate to review the proceedings of county commissioners upon the abatement of taxes.16

11 Boott Cotton Mills v. Lowell, 159 Mass. 383 (1893).

12 See G. L. c. 59, § 65, infra page 297.

13 Porter v. Norfolk County Commissioners, 5 Gray 365 (1855); Charlestown v. Middlesex County Commissioners, 101 Mass. 87, 92 (1869); Sears v. Nahant, 205 Mass. 558 (1910). As to what constitutes "good cause" for delay, see the decisions on "reasonable excuse," G. L. c. 59, § 61, supra page 287. 14 Sears v. Nahant, 205 Mass. 558 (1910).

15 Lowell v. Middlesex County Commissioners, 3 Allen 546, 549 (1862). 16 Newburyport v. Essex County Commissioners, 12 Met. 211 (1846). Lincoln v. Worcester, 8 Cush. 55, 61 (1851). A writ of mandamus will not lie

G. L. c. 59, § 65]

Certiorari is a discretionary writ and the proceedings will not be quashed by a certiorari for a technical irregularity not doing manifest injustice. The writ will not be granted because improper evidence was admitted by the county commissioners unless they have used it as a test." Either the person assessed or the city or town, if aggrieved by an improper ruling of law, may apply for certiorari.

The certiorari is heard by a single justice. It is a proceeding at law and not in equity. To take the case to the full bench an appeal does not lie, but unless the presiding justice reports the case the remedy of a dissatisfied party is to file a bill of exceptions.1

18

Appeal to the Superior Court

SECTION 65. A person aggrieved as aforesaid may, instead of pursuing the remedy provided in the preceding section, but subject to the same conditions, appeal to the superior court for the county where the property taxed lies by entering a complaint in said court within thirty days from the giving of the notice required by section sixty-three, which shall be heard and determined as other court cases by the court sitting without a jury.

In 1890 a person aggrieved by the refusal of the assessors to abate a tax upon him was given the additional remedy of an appeal to the superior court and this proceeding has in practice almost superseded the concurrent right of appeal to the county commissioners. The rights of the parties are the same, whichever method of appeal is employed,1 though the procedure is different.

The statute as originally enacted provided that the appeal should be entered in the superior court on the first return day after the expiration of thirty days from the notice of the assessors' decision, but this unnecessary limitation of the exercise of the right to a single day was done away with in connection

to compel county commissioners to revise their decision. Gibbs v. Hampden County Commissioners, 19 Pick. 298 (1837).

17 Lowell v. Middlesex County Commissioners, 152 Mass. 372 (1890). 18 Brockton v. Plymouth County Commissioners, 183 Mass. 42 (1903).

1 Sears v. Nahant, 205 Mass. 558 (1910). Decisions as to "good cause for delay" are applicable to either form of appeal. Conversely a corporation which is authorized to appeal to the county commissioners under G. L. c. 63, § 57, although it has filed no list, may appeal to the superior court, as a "person aggrieved as aforesaid." Essex Co. v. Lawrence, 214 Mass. 79, 87 (1913).

[G. L. c. 59, § 66 with the preparation of the General Laws, and entry may be now made on any day within thirty days from the receipt of the assessors' notice."

The proceeding is an appeal, and no service of process upon the assessors or upon the inhabitants of the town is required or necessary. The town, and not the assessors, should be named as the party respondent.* No answer by the respondent is necessary. The finding of the court, in the absence of questions of law, is conclusive."

5

The remedies given by statute to a person assessed whose tax the assessors refuse to abate are exclusive, and a writ of mandamus to compel the assessors to abate a tax or a writ of certiorari to quash the refusal of a board of assessors to abate a tax, based on alleged errors of law in the assessors' proceedings, will not lie.'

Provision for Speedy Trial

SECTION 66. The complaint shall be heard at the first sitting of the court in such county for the trial of civil causes after its entry, unless, at the request of the respondent, further time is allowed by the court. The superior court or the supreme judicial court, if the case is carried thereto, shall at the request of the town advance the case so that it may be heard and determined with as little delay as possible.

The provision for early trial is for the benefit of the city or town, can be waived by the city or town and does not go to the jurisdiction of the court, so as to preclude a trial at a later sitting.1

2 St. 1918, c. 257, § 39, and see Preliminary Report of Commissioners to Consolidate the General Laws, p. 106.

3 Cheney v. Dover, 205 Mass. 501 (1910); Thayer Academy v. Assessors of Braintree, 232 Mass. 402 (1919).

4 Cheney v. Dover, 205 Mass. 501 (1910). Prior to these decisions, the assessors were frequently made parties respondent. If a complaint is brought against the assessors, it may be amended by substituting the town as the appellee. Thayer Academy v. Assessors of Braintree, 232 Mass. 402 (1919).

5 In National Bank of Commerce v. New Bedford, 175 Mass. 257 (1900), Holmes, C. J., speaks of the "tardily filed answer" and says that "the reason for the delay seems to have been that the respondent had not filed an answer;" but it would seem to follow from the reasoning in Cheney v. Dover, 205 Mass. 501 (1910), that an answer was not necessary. Cases have been heard without an answer; for example, Sears v. Nahant, 205 Mass. 588 (1910).

6 Hollis v. Lynn, 237 Mass. 135 (1921).

7 Sears v. Assessors of Nahant, 208 Mass. 208 (1911).

1 National Bank of Commerce v. New Bedford, 175 Mass. 257 (1900).

G. L. c. 59, §§ 67,68]

SECTION 67.

Reference to Commissioner

The court may appoint a commissioner to hear the parties and report the facts, with or without the evidence. Such report shall be prima facie evidence of the facts therein found. The court shall allow such commissioner reasonable compensation to be paid by the county.

When a case has been referred to a commissioner, heard in the superior court upon his report, and taken on exceptions to the supreme judicial court, the judgment of the commissioner in matters of fact is not open to revision. The only questions 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; and when the commissioner's report is the only evidence the question is solely whether the report warranted the finding of the superior court.2

Judgment and Costs

SECTION 68. If, on hearing, the court finds that the complainant has complied with all the provisions of law and has paid the tax for which he has been assessed, it may grant him a reasonable abatement, and shall render judgment against the town for the amount thereof, and for all charges and interest on the amount of the abatement from the date of the payment of the tax. The court may also, if the complainant has filed a list of his estate as required by section twenty-nine, allow him costs in its discretion. If no abatement is granted, judgment shall be rendered for the town for its expenses and costs, to be taxed by the court.

Payment of the tax not only does not preclude the taxpayer from invoking the jurisdiction of the court, but is made by this statute an express condition of the granting of an abatement. It is not however generally considered that the tax must be paid before the complaint is filed; it is sufficient if it is paid before the case is heard. The provisions of law, compliance with which is also made a condition precedent, are doubt

1 Page v. Melrose, 186 Mass. 361 (1904).

2 Hollis v. Lynn, 237 Mass. 135 (1921).

1 National Bank of Commerce v. New Bedford, 155 Mass. 312 (1892).