order authorizing the erection of the city hall until after the election at which voters would have opportunity to cast an advisory vote on the [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 739; Dec. Dig. 279.] 4. MUNICIPAL CORPORATIONS 302(1)—Or DER OF BOARD OF ALDERMEN-PASSAGE AT particular person for a particular service,, not stay the right of the board to pass its and while its full use and enjoyment for that purpose was implied, the defendant did not contract for or assent to its use by the plain-question. tiff, who at most was only a licensee to whom it owed no duty except to refrain from wanton and reckless acts on the part of its servant in driving the car, which are not charged in the declaration or shown by the evidence. Freeman v. United Fruit Co., 223 Mass. 300, 111 N. E. 789; Walker v. Fuller, 223 Mass. —, 112 N. E. 230; McColligan v. Penn. R. R., 214 Pa. 229, 63 Atl. 792, 6 L. R. A. (N. S.) 544, 112 Am. St. Rep. 739; Felton v. Deall, 22 Vt. 170, 54 Am. Dec. 61; Smith v. Bailey [1891] 2 Q. B. 403, 3 R. C. L. Bailments, § 32. The request for instructions to the jury that "upon all the evidence the jury must find for the defendant" and "that there is no evidence for your consideration of negligence on the part of the defendant, the R. & L. Company" should have been given. The remaining exceptions in so far as not covered by what has been said need not be considered. Exceptions sustained. (224 Mass. 176) FULLER et al. v. HAINES et al. (Supreme Judicial Court of Massachusetts. Middlesex. May 19, 1916.) 1. MUNICIPAL CORPORATIONS 279-GENERAL MEETING OF INHABITANTS-VOTE-BINDING FORCE-STATUTE. City Charter of Medford, St. 1903, c. 345, $7, as amended by St. 1906, c. 252, § 1, provides that general meetings of the inhabitants may be held according to the right secured the people by the Constitution of the commonwealth, and that such meetings, upon the request of 50 qualified voters, shall be called by the board of aldermen. Held, that the vote of such a meeting has no bearing upon the financial obligations of the city. Where the order for the erection of a new city hall was first presented to the board of aldermen of the city of Medford as accompanying the mayor's letter of January 11, 1916, being referred to a committee, which unanimously recommended its adoption, by report presented to the board January 25th, the adoption being then moved, and, after discussion, the order being adopted, such order was not passed through all its stages at one meeting, the presentation at the meeting of January 25th being its final stage. [Ed. Note.-For other cases, see Municipal 302(1).] Corporations, Cent. Dig. §§ 803, 806; Dec. Dig. Petition in equity under Rev. Laws, c. 25, § 100, by Dana L. Fuller and others against Benjamin F. Haines and another, as Mayor and City Treasurer of the City of Medford. Bill dismissed. Edward E. Elder and Frederick W. McGowan, both of Boston, for petitioners. Charles S. Baxter and George C. Scott, both of Boston, for respondents. RUGG, C. J. This is a petition in equity under R. L. c. 25, § 100, by ten taxpayers of the city of Medford, to restrain the mayor and city treasurer of that city from borrowing money to construct a city hall, in accordance with an order of the board of aldermen, dated January 25, 1916. The main contention is that the order authorizing the [Ed. Note.-For other cases, see Municipal action sought to be enjoined is invalid beCorporations, Cent. Dig. § 739; Dec. Dig.cause the voters of the city at the municipal 279.] election in 1913 voted not to borrow or ap 2. MUNICIPAL CORPORATIONS 279-ADVI-propriate money for a city hall, which vote SORY VOTE OF INHABITANTS-STATUTES. Under the city charter of Medford, St. 1903, c. 345, § 7, as amended by St. 1906, c. 252, § 1, providing that the board of aldermen, upon request of 25 per cent. of the voters, shall order placed upon the official ballot for a municipal election any question of public interest which can be answered by "Yes" or "No," a vote on such question does not bind the city absolutely and fix finally the municipal policy upon the subject of the vote so that it was not beyond the power of the aldermen, after a negative answer to the question of the erection of a new city hall, to authorize and appropriate money for the building. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 739; Dec. Dig. & 279.] 3. MUNICIPAL CORPORATIONS 279-ADVISORY VOTE OF INHABITANTS-PETITION STATUTE. has not been revoked or amended. The first [1, 2] This contention is founded on section 7 of the city charter of Medford, St. 1903, c. 345, as amended by St. 1906, c. 252, 1.1 That section contains two sentences referring to two different matters. relates to general meetings of citizens. It provides for the exercise of the right secured by article 19 of the Declaration of Rights. It is a provision almost universally found in city charters. Wheelock v. Lowell, 196 Mass. 220, 226, 81 N. E. 977, 134 Am. St. Rep. 543, 12 Ann. Cas. 1109. The purpose of that sentence in general is to enable the 1 "General meetings of the inhabitants of the city may from time to time be held, according to the right secured to the people by the Constitution of the commonwealth; and such meetings may, and upon the request in writing of fifty qualified voters setting forth the purposes thereof shall be called by the board of aldermen. The board, upon request in writing of twenty-five per cent. of the qualified vot The filing, with the board of aldermen, of a petition signed by 25 per cent. of the voters of the city of Medford, requesting that there be placed upon the official ballot at the following municipal election the questions whether a city hall should be built, etc., the procedure beers, shall order placed upon the official ballot for a municipal election any question of public intering authorized by city charter, St. 1903. c. 345, est set forth in such request, provided that such § 7, as amended by St. 1905, c. 252, § 1, did question can be answered by 'Yes' or 'No.'" For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes When the Legislature has designed to give binding force to an initiative or referendum vote, it has been able to find expression for that purpose in unmistakable words. See, for example, the city charters referred to in the footnote, where provisions in this respect are clear.2 The conclusion seems to us inevitable that the effect of the referendum vote of the voters of Medford in 1913 had no more than an advisory effect and did not prevent the board of aldermen from dealing with the subject as it deemed wise at any time. voters to have full and free discussion and | guage of the section without stretching it to consultation upon the merits of candidates include that which, when intended, commonfor public office and of measures proposed in ly is expressed by clear words. the public interests. Its importance in this respect is of the highest moment. See Commonwealth v. Porter, 1 Gray, 476. It never has been suggested, so far as we are aware, that the vote of such a meeting had a legally binding force upon the city. It certainly can have no bearing upon its financial obligations. The second sentence of section 7 relates to the general subject of ascertaining the view of such voters as choose thus to express themselves upon any question of public interest which can be answered by a plain affirmative or negative. Its collocation with the other sentence in one section is some indication that it is of the same general character. It is in the briefest possible phrase and contains no words expressive of the effect of such vote. The force to be given it rests entirely upon implication. The natural inference is that its force and effect is the same as that of the other form of expression of public opinion with which it stands combined in one section, which is a provision long known in legislation and whose force and effect are well understood. It hardly can be presumed, in the absence of a definite enactment to that end, that the Legislature intended such a vote to bind the city absolutely and to fix finally the municipal policy upon the subject of the vote. [3] Shortly before the order in question was passed by the board of aldermen, a petition signed by twenty-five per cent. of the qualified voters of the city was presented to the board, requesting that there be placed on the official ballot at the municipal election for 1916 the questions whether a city hall should be built and whether, if to be built, it should be built under the supervision of three or more citizens. What has been said disposes in substance of the contention that the filing of this petition operated to stay the right of the board of aldermen to pass the order until after such election. It cannot have been the intent of the Legislature to suspend all power of the municipality to act touching a matter to be voted on at the municipal election, then almost eleven months in the future, when the vote itself would be simply advisory and not compulsory in its effect. When the Legislature has intended that the filing of a petition for a referendum should have the effect of suspending the pow The conception of the referendum as to definite measures of local administration in cfties is a comparatively new one in the legislation of this state. While it has been the legislative practice for a long time to make the taking effect of a statute of local concern in a particular municipality dependent up-er of the municipal government to act touchon acceptance in some form (Barnes v. Chicopee, 213 Mass. 1, 4, 99 N. E. 464), it is only within recent years that what is popularly known as the initiative and referendum have been applied in matters involving policy as to particular measures of improvement. Graham v. Roberts, 200 Mass. 152, 85 N. E. 1009. It is hardly to be inferred that so radical a departure in municipal government would have been undertaken in any city without plain words indicative of that design. It may well have been thought that the machinery for the expression of an advisory opinion by the voters of a city at a public meeting was quite inadequate, in view of the inconvenience of gathering at a single hall a substantial proportion of the citizens, and that this should be supplemented by giving to any voter the privilege of expressing his view so that it would be counted. Advisory expressions of public opinion participated in by large numbers of people may have been deemed likely to be a sufficiently strong incentive to action by city officers. It is no idle form to secure a definite conception in this form of what the people think on any subject of general interest. Ample scope thus is given for the operation of the lan ing the matter referred until after the popular vote, it has disclosed that intent by plain words. This is manifested by language used in the city charters referred to in the last footnote. [4] The city charter of Medford provides in section 16 that an order of the board of aldermen may be passed through all its stages at one session by unanimous consent, but, if one member objects, the measure shall be postponed for at least one week. The single justice has found that "no one objected to the consideration of the passage of the order here assailed." The record of the board of aldermen shows the order first was presented as accompanying the letter of the mayor on January 11, 1916. It then was referred to a committee. The committee unanimously recommended the adoption of the order by report presented to the board of aldermen on January 25th. Its adoption then was 2 St. 1908, c. 611, §§ 27, 28, 29, Gloucester; St. 1908, c. 574, §§ 42, 43, Haverhill; St. 1910, c. 602, pt. 1, S$ 64, 65, Lynn: St. 1911, c. 621, pt. 1. §§ 45, 53, Lawrence; St. 1911, c. 680, pt. 1, §§ 54, 55, Chelsea; St. 1911, c. 645, §§ 60, 61, Lowell; St. 1914, c. 680, §§ 25, 26, Attleboro; St. 1914, c. 609. §§ 28, 29, Westfield; St. 1911, c. 732, pt. 3, § 55, Pittsfield; St. 1911, c. 531, § 69, Cambridge; St. 1915, c. 267, pt. 1, § 42, General Act. Philip Nichols, of Boston, for petitioner. Henry C. Attwill, Atty. Gen., and Wm. Harold Hitchcock, Asst. Atty. Gen., for the Commonwealth. RUGG, C. J. This is a petition for the recovery of a corporation excise tax paid by the petitioner under protest. The petitioner, incorporated under the laws of this commonwealth, carried on the business of lending money at interest, secured by pledges of articles of personal property, possession of which is in the petitioner but the title to which is moved, and after discussion by several members it was adopted on a roll call by the Notes of sixteen members in the affirmative to three in the negative. The order was not passed through all its stages at one meeting. It was or should have been read, and was referred to a committee at the meeting of January 11th. In legislative bodies where several readings are required, and in the absence of special rule, that constitutes one stage or the first reading. The presentation at the meeting of January 25th was its second stage. Since the rules of the board of aldermen of Medford do not prescribe sev-in customers. No notes or other paper evieral readings of orders like this, that was its final stage. Therefore, even if it be assumed, but without so intimating, that a negative vote was the equivalent to an objection, the order was at its final stage on January 25, 1916, having received its first consideration at the earlier meeting, and the objection of three members was not enough to require further postponement. Bill dismissed without costs. (224 Mass. 181) BOSTON LOAN CO. v. COMMONWEALTH. (Supreme Judicial Court of Massachusetts. Suffolk. May 19, 1916.) 1. TAXATION PLEDGEE. 81 PERSON SUBJECT Ordinarily the general owner of intangible, personal property is subject to taxation, rather than the pledgee, who has a special lien thereon; but under Tax Act (St. 1909, c. 490) pt. 1, § 26, personalty pledged is for purposes of taxation deemed the property of the pledgee. dence of the loan are taken by the petitioner. The only question presented is whether the tax commissioner followed the correct rule in estimating the value of the petitioner's corporate franchise. The decision of that question depends upon the interpretation of section 43 of part 3 of the Tax Act, St. 1909, c. 490, the pertinent parts of which are in the margin. More narrowly stated, the point in controversy is whether in determining the maximum limit of taxation established by that section, the word "merchandise" includes or excludes the articles of personal property held in pledge by the petitioner. [1] The petitioner does not and could not well contend that these articles are not "merchandise" within the meaning of that word, which in this connection as respects chattels includes "tangible personal property which may be the subject of sale." New Eng. & Savannah S. S. Co. v. Com., 195 Mass. 385, 391, 81 N. E. 286, 11 Ann. Cas. 678. But it [Ed. Note. For other cases, see Taxation, does contend that the value of this merchanCent. Dig. § 169; Dec. Dig. 81.] dise ought not to be considered as a part of 2. TAXATION 376(1)—EXCISE TAX-PLEDG- the principal upon which the 20 per cent. is ED PERSONALTY-STATUTE “MERCHANDISE.' to be calculated in ascertaining the maximum Under Tax Act, pt. 1, § 26, providing that excise tax. That contention is founded on personalty mortgaged or pledged shall, for the the fact that it is not the absolute owner of purpose of taxation, be deemed the property of the party in possession on the 1st day of May, such merchandise. Plainly the general title and part 3, § 43, subjecting domestic corpora- to the articles pledged is in the owner. But tions to a tax on their corporate franchise, a the petitioner as pledgee acquired a special corporation lending money secured by pledges of personal property of which it had possession, property in the article pledged. Thompson v. while title was in its customers, was liable to Dolliver, 132 Mass. 103; Harding v. Eldridge, an excise tax, the maximum limit of which 186 Mass. 39, 42, 71 N. E. 115; Gamson v. was ascertained, under section 43, by consid- Pritchard, 210 Mass. 296, 96 N. E. 715. Ordiering, as part of the principal on which the tax was to be levied, all merchandise of which narily the general owner is subject to taxathe corporation held possession in pledge, since tion for intangible personal property rather "merchandise," as used in the statute, includes than the pledgee having a special lien. Walpersonal property which may be the subject of tham Bank v. Waltham, 10 Metc. 334; Chase v. Boston, 193 Mass. 522, 527, 79 N. E. 736. sale. [Ed. Note. For other cases, see Taxation, For other definitions, see Words and Phrases, Petition by the Boston Loan Company against the Commonwealth of Massachusetts, for the recovery of a corporation excise tax paid by the petitioner under protest. On reservation for the determination of the full court. Petition dismissed. 1 "Every 'corporation subject to the provisions of section forty shall annually pay a tax upon its corporate franchise, after making the deductions provided for in section forty-one, at a rate equal to the average of the annual rates for three years preceding that in which such assessment is laid; but the said tax upon the value of the corporate franchise of a domestic business corporation, after making the deductions provided for in section fortyone, shall not exceed a tax levied at the rate aforesaid upon an amount, less said deductions, twenty per cent. in excess of the value, as found by the tax commissioner, of the works, structures, real estate, machinery, underground conduits, wires and pipes, and merchandise, and of securities which if owned by a natural person resident in this commonwealth would be liable to taxation." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Petition dismissed with costs. (224 Mass. 167) WRIGHT v. LYONS. 1. LIVERY STABLE AND GARAGE KEEPERS -- TIONS. As to tangible personal property, a different | be owned by the one in possession, whether a rule is established by statute. It is provided domestic or a foreign corporation, or natural by part 1, § 26, of the Tax Act that "personal person. property mortgaged or pledged shall for the purpose of taxation be deemed the property of the party in possession thereof on the first day of May." The natural construction of these words is that in the administration of the tax laws the person in possession as pledgee of pledged property shall be treated as the owner. No reason appears why their natural meaning should not be attributed to the words in this connection. It has been decided that under this clause property of another held under the lien of a pledge either by a natural person or by a foreign corporation as pledgee is taxable to the pledgee. Boston Loan Co. v. Boston, 137 Mass. 332. It is difficult to conceive of a purpose on the part of the Legislature to treat every other pledgee in possession of pledged personal property as the owner for the purposes of taxation and to make an exception in that respect of domestic corporations. Under St. 1913, c. 577, as amended by St. 1914, c. 119, requiring a petition to street commissioners for permit to erect a public garage to "contain the names and addresses of every thereon" and, before license is granted, notice owner of record of each parcel of land abutting to be given by registered mail "to every owner of record of each parcel of land abutting on the parcel" on which the building is sought to be erected, makes it mandatory that, where there are tenants in common of an abutting estate, each one be so notified. [Ed. Note.-For other cases, see Livery Stable and Garage Keepers, Cent. Dig. § 2; Dec. Dig. 42.1 2. LIVERY STABLE AND GARAGE KEEPERS -NOTICE. Failure to give such notice goes to the jurisdiction of the street commissioners, so far as concerns abutting owners not so notified, and no order can be passed in such proceeding affecting an abutting property owner of record without acquiring jurisdiction over him in the manner prescribed by statute or otherwise. [Ed. Note.-For other cases, see Livery Stable and Garage Keepers, Cent. Dig. § 2; Dec. Dig. 42.] 3. NUISANCE 72 GROUNDS FOR INJUNC TION-SPECIAL DAMAGES. Even though a public nuisance is created, one suffering special damage may have a private remedy. [2] Substantially all our general laws respecting taxation have been codified in St. 1909, c. 490. The combination in one comprehensive act of most if not all of our laws respecting taxation compels the inference that the Legislature intended to create a general system consistent in its main provisions and harmonious in its details. It cannot be assumed that a different principle should be applied to the same property dependent upon the accident of possession by a domestic corporation, instead of by a natural person or a foreign corporation. The maximum limit of taxation of domestic corporations in instances to which it is applicable operates as an exemption of some property from the burden of taxation. It is a general rule that exemp- 4. NUISANCE 75-GARAGES-EXPLOSIVEStions from taxation are interpreted strictly INJUNCTION. and are not allowed unless plainly establish- A petition to restrain defendant from erectIn ascertaining the maximum limit of ing next to plaintiff's premises a public garage selling and storing gasoline, constituting a nuithe corporation excise, merchandise of a tax-sance because of noise, confusion, odors, and able character held by the corporation is to gasoline storage, is not demurrable as not entibe considered. Farr Alpaca Co. v. Com., 212 tling to equitable relief. Mass. 156, 98 N. E. 1078. The property held in pledge is of that class. In computing the maximum limit of the corporation excise, the general statutory rules as to the person to whom merchandise shall be taxed or who shall be treated as owner for the purpose of taxation, should be followed. ed. The Tax Act means that in ascertaining the maximum limit under section 43, there should be considered as a part of the principal upon which the 20 per cent. is taken, all the merchandise to which the corporation holds title or to which its relation is such that it would be liable for a property tax if it were subject to the general laws touching property taxation, instead of to an excise tax. It follows from all these considerations that pledged property, for the purposes of interpretation of the Tax Act, is to be deemed to [Ed. Note. For other cases, see Nuisance, Cent. Dig. §§ 164-169; Dec. Dig. 72.] Cent. Dig. §§ 176-184; Dec. Dig. 75.] Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge. Suit by Alice Wright against John B. Lyons. From a decree for defendant, plaintiff appeals. Reversed. James H. Kenney, of Boston, for complainant. James H. Devlin, Jr., of Boston, for respondent. RUGG, C. J. This is a suit in equity to restrain the defendant from erecting a garage in Boston. The petition alleges that the plaintiff, a resident of Boston, with her two sisters, who live outside the commonwealth, are owners as tenants in common of premises abutting upon those of the defendant on Warrington street in Boston; that in July, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1915, the defendant filed a petition with the [3, 4] The facts set out in the plaintiff's street commissioners of Boston for a permit bill show a special damage to her. Even to erect a public garage and for a license to though a public nuisance is created, one sufkeep, store and sell five hundred gallons of fering special damage may have a private gasoline in an underground tank upon his es- remedy. Wesson v. Washburn Iron Co., 13 tate, upon which petition the defendant was Allen, 95, 102 to 104, 90 Am. Dec. 181. The ordered to give notice by publication and by noise, confusion and noisome odors, and the sending "by prepaid registered mail a copy storing of large quantities of inflammable and to every owner of record of each parcel of explosive material, might be found to conland abutting on the parcel of land on which" stitute a private nuisance (Commonwealth v. the defendant proposed to erect and maintain Kidder, 107 Mass. 188, 192; Riverbank Imhis garage; that no notice was given to the provement Co. v. Bancroft, 209 Mass. 217, plaintiff, who did not know of the publica- 223, 95 N. E. 216, 34 L. R. A. [N. S.] 730, tion of the notice, and that she never has | Ann. Cas. 1912B, 450; Storer v. Downey, 215 had an opportunity to object to the granting Mass. 273, 102 N. E. 321), and to entitle her of the license, and that the erection of the to relief in equity (Stevens v. Rockport Grangarage on the defendant's premises and the ite Co., 216 Mass. 486, 104 N. E. 371, Ann. exercise of the rights conferred by the li- Cas. 1915B, 1054, and cases there collected). cense constitutes a nuisance to the plaintiff's The case at bar is quite distinguishable from property and depreciates its value by reason cases like Henry v. Newburyport, 149 Mass. of being a source of much noise, confusion 582, 22 N. E. 75, 5 L. R. A. 179, and Shaw v. and distasteful odors. The defendant's de- Boston & Albany Railroad, 159 Mass. 597, 35 murrer to the bill was sustained and the N. E. 92, for reasons set forth at length in plaintiff's appeal from the final decree dis- Wesson v. Washburn Iron Co., 13 Allen, 95, missing the bill brings the case here. The 90 Am. Dec. 181. act under which the street commissioners un- Decree reversed. dertook to proceed is St. 1913, c. 577, as amended by St. 1914, c. 119. The statute requires a petition for a permit, such as that averred by the plaintiff's bill to have been asked for by the defendant, to "contain the names and addresses of every owner of record of each parcel of land abutting thereon," and that before the license is granted notice shall be given by registered mail "to every owner of record of each parcel of land abutting on the parcel" on which the building is sought to be erected. [1] The words of the statute make it mandatory that where there are tenants in common of an abutting estate, each one must be notified. Only by giving them this meaning can effect be given to all the words used. It is the natural as well as the accurate sig, nification of the language employed. Otherwise, as illustrated by the averments of the present bill, the only one of several owners in common in a position to be present at a hearing may have no knowledge whatever of the proceeding until after the permit has been granted. [2] This defect in the service of the order goes to the jurisdiction of the board of street commissioners, so far as concerns the plaintiff. No order can be passed affecting the rights intended to be secured to the plaintiff, as one of the owners of record of an abutting parcel of land, without notice to her in the manner required by the statute or otherwise acquiring jurisdiction by proper service upon her. Lawrence v. Smith, 201 Mass. 214, 87 N. E. 623; Simon v. Southern Ry. Co., 236 U. S. 115, 122, 35 Sup. Ct. 255, 59 L. Ed. 492. The general notice by publication manifestly is not intended to affect her in view of the fact that another provision requires notice to her by registered mail. 1. In re CARVER. (224 Mass. 169) (Supreme Judicial Court of Massachusetts. Under Rev. Laws, c. 173, § 106, allowing exceptions, and rule 45 of the superior court, justice, unless it has been alleged and saved no exception shall be allowed by the presiding when the opinion, ruling, or judgment excepted to is given. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1616-1618; Dec. Dig. & 272(3).] 2. APPEAL AND Error 356 TIME FOR FIL ING RULE OF COURT. Under rule 44 of the superior court, where an appeal from an order of disbarment entered July 1, 1915, was not presented for filing until November 17th, the clerk properly declined to enter it, as the time for filing an appeal had expired. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1926, 1927; Dec. Dig. 356.] 3. APPEAL AND ERROR 356 DENIAL OF MOTION FOR NEW TRIAL-APPEAL. Where a motion for a new trial. was filed October 18, 1915, and denied January 19, 1916, an appeal therefrom presented for filing on February 10th, not within the time allowed by rule 44 of the superior court, and not entered, was not before the Supreme Judicial Court. [Ed. Note.-For other cases, see Appeal and 4. NEW TRIAL 26-MOTION-SCOPE. on that motion. [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 37-39; Dec. Dig. 26.] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |