Home CITY OF BOSTON vs. U.N.A. CORPORATION; MASSACHUSETTS PORT AUTHORITY, third-party defendant (and a companion case [Note 1]).

11 Mass. App. Ct. 298

December 4, 1980 - February 3, 1981

Suffolk County

Present: HALE, C.J., CUTTER, & KASS, JJ.

In an action by the city of Boston under G. L. c. 60, Section 35, for unpaid real estate taxes on the defendants' leasehold interests in parts of Commonwealth Pier 5, a finding was warranted that Pier 5 was located in the "Commonwealth Flats," and, therefore, business lessees of Pier 5 were subject to taxation under St. 1956, c. 465, Section 17; resort to a report of the special commission which drafted St. 1956, c. 465, which recommended that Pier 5 should be exempt from taxation, could not affect the interpretation of Section 17 where there was no ambiguity in the statute. [299-303]

The Massachusetts Port Authority was ultimately liable for taxes assessed against lessees for the years 1970 and 1971 under the exception set forth in St. 1956, c. 465, Section 17. [303]

TWO ACTIONS OF CONTRACT. Writs in the Superior Court dated May 9, 1972.

The actions were heard by Fine, J.

Robert K. Gad, III (George C. Caner, Jr., with him) for the Massachusetts Port Authority.

Gerald McTernan, Assistant Corporation Counsel, for the city of Boston.

Patricia S. Nelson for U.N.A. Corporation.

Howard S. Fisher for Robert M. Feinberg.


HALE, C.J. In 1972 the city of Boston (city) brought actions in contract under G. L. c. 60, Section 35, for unpaid real

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estate taxes against the defendants U.N.A. Corporation and Robert M. Feinberg. The taxes were assessed for the years 1970 and 1971 on the defendants' leasehold interests in parts of Commonwealth Pier 5. Each defendant brought a third-party action against the Massachusetts Port Authority (Authority), their lessor. The cases were consolidated for trial in the Superior Court where, after a trial, the judge made findings of fact, conclusions of law and an order for judgment. Pursuant to that order judgments were entered in each case for the city against the defendants and for the defendants against the Authority. The defendants and the Authority have appealed, and the appeals were consolidated in this court for the purposes of briefing and argument.

Common to each appeal is the contention that the city was without authority to levy the taxes which it seeks to recover. As the resolution of this issue in favor of the defendants and the Authority would be dispositive, we address it first.

The Authority, which was created by St. 1956, c. 465, its enabling act, on February 17, 1959, took control of, among other things, the port properties located in the port of Boston. See Massachusetts Port Authy. v. Treasurer & Receiver Gen., 352 Mass. 755 , 757 (1967). These properties included Pier 5, otherwise known as the Commonwealth Pier. Section 17 of the enabling act, which we set out in full in the margin, [Note 2] provides in general that both the Authority

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and the lessees of any of its properties are to be exempt from taxation. A limited exception permits the assessment of taxes to business lessees (but not to the Authority) of "lands of the Authority . . . situate in that part of the city called South Boston and constituting a part of the Commonwealth Flats." An issue in this case is whether Commonwealth Pier 5 is a part of those flats.

The defendants and the Authority also contended before the trial judge and have argued here that the quoted language is ambiguous. They maintain that the legislative intent as disclosed by the legislative history, specifically 1956 House Doc. No. 2575, which is entitled, Report of the Special Commission on the Massachusetts Port Authority, was not to include Pier 5 within that limited exception and thus leasehold interests in parts of it would not be taxable. The Special Commission (Commission) had been created by c. 146 of the Resolves of 1955 to study and make recommendations for, among other things, the consolidation of certain agencies and the creation of a Massachusetts Port Authority. Less than a page of that report, which consists of a total of 37 pages, dealt with the Commonwealth flats and that part of the report, at 35, concludes with the following:

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"Your Commission recommends that the city of Boston be allowed to continue to tax in the limited manner referred to those areas of the flats which it had the right to tax at the time of transfer (exclusive of Commonwealth Pier No. 5) to the recommended Massachusetts Port Authority.

"The draft of legislation hereto appended contains legislation to carry this recommendation into effect (see Appendix A, section 17)."

Section 17 of Appendix A of the report is worded the same as the Section 17 enacted in St. 1956, c. 465, except for those words which we have italicized in Section 17, set out in note 2, supra.

It appears to us that as applied to this case the only part of Section 17 that is unclear is whether Pier 5 is located in the "Commonwealth Flats." The judge found as a fact that it is. That finding is supported by the evidence and stipulations before the judge and is not erroneous. [Note 3]

Given that finding, the plain language of Section 17 of St. 1956, c. 465, permits no other reading than that parts of Pier 5 which are leased for business purposes are taxable by the city to the lessee. "[T]he general rule of statutory construction is that a statute that is not ambiguous cannot be interpreted by resort to legislative history. `The plain meaning of a statute cannot be affected by resort to proceedings incident to its passage. Light may be sought from that source only to illumine statutory language of doubtful import. Other information than that afforded by the words of the statute can be examined only to aid in the solution of an ambiguity.'" Chouinard, petitioner, 358 Mass. 780 , 782 (1971), quoting from Allen v. Commissioner of Corps. & Taxn., 272 Mass. 502 , 508 (1930). Rosenbloom v. Kokofsky, 373 Mass. 778 , 781 (1977).

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The rule stated in Price v. Railway Exp. Agency, Inc., 322 Mass. 476 , 484 (1948), which informs us that "[w]e must look beyond the letter of a statute where a literal construction would be inconsistent with the legislative intent," is of no assistance to the defendants or the Authority as we do not detect any such inconsistency. The Commission recommended (as shown in the portion of its report which we have set out above) that the city be allowed to "continue to tax . . . those areas of the flats which it had the right to tax" at the time of the recommended transfer to the Port Authority (exclusive of Commonwealth Pier 5). Section 17 of the draft of the proposed legislation did not include that specific language. Similar, but not identical, language (the italicized language in footnote 2, supra), was adopted by the Legislature in Section 17 as enacted by St. 1956, c. 465. That language did not include the parenthetical reference to Pier 5. We note too that the city's taxing authority as to leasehold interests in the Commonwealth flats, for all practical purposes, is the same as stated in St. 1904, c. 385, Section 1. [Note 4]

Having this in mind, we cannot say that the omission of any reference to Commonwealth Pier 5 in the exception to the tax exemption provided in Section 17, as enacted, was not intended. Indeed, for us to say that the Legislature mistakenly overlooked the provisions as to Pier 5 would be presumptuous. For us to go further and to rewrite the legislation so as to include the reference to Pier 5 would be to trespass on the exclusive domain of the Legislature. Compare Milton

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v. Metropolitan Dist. Commn., 342 Mass. 222 , 227 (1961). There is nothing in Price, supra, which requires, or permits, us to do so.

We turn now to the issue of the incidence of the tax. The judge found that the Authority was ultimately liable for the tax. Her ruling was based on the decisions in Boston Molasses Co. v. Commonwealth, 193 Mass. 387 (1907), and Gloucester Ice & Cold Storage Co. v. Assessors of Gloucester, 337 Mass. 23 (1958). We uphold her ruling on the same basis. [Note 5] See Opinion of the Justices, 365 Mass. 665 , 672-673 (1974). The exemption from property tax contained in the Authority's enabling act does not require a different result. Boston Molasses, supra, at 389.

Judgments affirmed.


FOOTNOTES

[Note 1] City of Boston vs. Robert M. Feinberg; Massachusetts Port Authority, third-party defendant.

[Note 2] "The exercise of the powers granted by this act will be in all respects for the benefit of the people of the commonwealth, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions, and as the operation and maintenance of the projects by the Authority will constitute the performance of essential governmental functions, the Authority shall not be required to pay any taxes or assessments upon any project or any property acquired or used by the Authority under the provisions of this act or upon the income therefrom, and the bonds issued under the provisions of this act, their transfer and the income therefrom (including any profit made on the sale thereof) shall at all times be free from taxation within the commonwealth, and no property of the Authority shall be taxed to a lessee thereof under section three A of chapter fifty-nine of the General Laws; provided, however, that anything herein to the contrary notwithstanding, lands of the Authority, except lands acquired by the commonwealth under the provisions of chapter seven hundred and five of the acts of nineteen hundred and fifty-one, situate in that part of the city called South Boston and constituting a part of the Commonwealth Flats, and lands acquired by the Authority which were subject to taxation on the assessment date next preceding the acquisition thereof, shall, if leased for business purposes, be taxed by the city or by any city or town in which the said land may be situated to the lessees thereof, respectively, in the same manner as the lands and buildings thereon would be taxed to such lessees if they were the owners of the fee, except that the payment of the tax shall not be enforced by any lien upon or sale of the lands, but a sale of the lease-hold interest therein and of the buildings thereon may be made by the collector of the city in the manner provided by law in case of non-payment of taxes for selling real estate, for the purpose of enforcing the payment of the taxes by such lessees to the city or town assessed under the provisions hereof" (emphasis supplied).

[Note 3] We note that the construction of Pier 5 and the financing for it were provided for in St. 1897, c. 513, the title of which is "An Act to provide for the construction of a pier and dock on the commonwealth's flats at South Boston."

[Note 4] Statute 1904, c. 385, Section 1 states: "The lands of the Commonwealth, situate in that part of the city of Boston called South Boston and known as the Commonwealth Flats, shall, if leased for business purposes, be taxed by the city of Boston to the lessees thereof, respectively, in the same manner as the land and buildings thereon would be taxed to such lessees if they were the owners of the fee, except that the payment of the tax shall not be enforced by any lien upon or sale of the lands: but a sale of the leasehold interest therein and of the buildings therein may be made by the collector of the city of Boston in the manner provided by law in case of non-payment of taxes for selling real estate, for the purpose of enforcing the payment of the taxes by such lessees to the city of Boston assessed under the provisions hereof."

[Note 5] Since 1974 lessees of the Authority may not recover from the Authority property taxes assessed to them under the present G. L. c. 59, Section 2B. See the various amendments to that provision from St. 1974, c. 383, Section 1 (amending the former G. L. c. 59, Section 3A, which was repealed by St. 1978, c. 580, Section 16), through St. 1979, c. 797, Section 11. (We assume that the reference to Section 15 in St. 1979, c. 797, Section 11, is intended to refer to the present G. L. c. 59, Section 12C, which contains the same language as the former G. L. c. 59, Section 15, which was repealed by St. 1978, c. 580, Section 30.)