COMMISSIONER OF CORPORATIONS AND TAXATION vs. ASSESSORS OF SPRINGFIELD.

QUA, C.J. We are unable to discover anything in this appeal that has not been decided in the previous litigation relating to the assessment of property of telephone and telegraph companies in the city of Springfield. Commissioner of Corporations & Taxation v. Assessors of Springfield, 329 Mass. 419. Assessors of Springfield v. New England Telephone & Telegraph Co., ante, 198.

On February 25, 1952, the commissioner, in accordance with the provisions of G. L. (Ter. Ed.) c. 59, Section 39, as amended by St. 1933, c. 254, Section 36, and St. 1939, c. 451, Section 22,44 [Note p434-1] certified to the assessors the valuations at which the machinery, poles, wires and underground conduits, wires and pipes of American Telephone and Telegraph Company, New England Telephone and Telegraph Company, and Western Union Telegraph Company [Note p434-2] located in Springfield should be assessed as of January 1, 1952. The assessors, deeming themselves aggrieved on the ground that the commissioner's valuations were too low, appealed to the Appellate Tax Board under the provisions of Section 39. That board held a hearing which began on December 3, 1952, and later, on December 17, 1952, rendered a majority decision in which it more than doubled the valuations certified by the commissioner to the assessors.

At the beginning of the hearing before the board, on December 3, 1952, the commissioner moved that the assessors' appeal to the board be dismissed as moot. The motion ought to have been granted for the reason that any assessment made after December 1 upon any valuation by the board would necessarily be made too late to enable

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the taxpayers to apply to the commissioner for an abatement under Section 73, which requires application "on or before December first of the year to which the tax relates." [Note 435p-1] This same point was decided in Commissioner of Corporations & Taxation v. Assessors of Springfield, 329 Mass. 419, where on page 422 we said, "Viewing the pertinent statutory provisions as a whole, it is clear that the Legislature intended the decision of the Appellate Tax Board to be `final and conclusive, except as provided in section seventy-three, relative to abatements.' As between the commissioner and the Appellate Tax Board, the commissioner under Section 73 has the later function to perform. He has the duty to make an abatement if he finds a company taxed `at more than its just proportion,' or upon an assessment of property `in excess of its fair cash value.' Where the Appellate Tax Board defers its decision until after December first, the later function of the commissioner on abatements would become a dead letter. It seems plain to us that the Legislature never meant that to happen." In Assessors of Springfield v. New England Telephone & Telegraph Co., ante, 198, at page 200, in referring to the previous decision from which we have just quoted, we said that the proceeding before the board "was ordered dismissed as moot for the reason that any decision of the board would then necessarily come so late that the company would lose the right of appeal to the commissioner secured to it by Section 73, which it must exercise not later than December 1, 1950." These statements are equally applicable to the year 1952.

We note the assessors' argument in their brief now before us to the effect that it is "senseless" to allow the assessors to appeal to the Appellate Tax Board from the commissioner's certification and then to allow the taxpaying company, after decision by the board, to apply for an abatement to the same commissioner, and that therefore the right of the taxpaying company to an abatement under Section 73 must

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exist only where the assessors have not appealed to the Appellate Tax Board, and that where the assessors have appealed the remedy of the taxpaying company is by application to the assessors for abatement followed by appeal to the Appellate Tax Board under c. 59, Section 59, as most recently amended by St. 1946, c. 199, Section 1, and c. 59, Section 65, as appearing in St. 1945, c. 621, Section 6. But this contention runs directly contrary to the wording of Section 39 by which it is expressly provided in substance that valuations by the Appellate Tax Board shall be subject to abatement by the commissioner as provided in Section 73. Sections 39 and 73 are companion sections originally enacted together as Sections 1 and 5 of St. 1915, c. 137, and are still to be read together in spite of the fact that as the result of subsequent revisions they have been placed in different parts of the chapter. It will not do simply to read the sections of c. 59 as they now appear in the General Laws without regard to their history or to the several purposes intended to be accomplished when they were enacted. The assessors persist in refusing to recognize that the act of 1915 relieved the poles and wires and underground conduits, wires and pipes [Note p436-1] of telephone and telegraph companies from ordinary methods of valuation and assessment and substituted a different method which must now be followed, and that this was done to avoid the difficulties that had arisen from the inconsistent local assessment of fragments of larger systems and to provide necessary consistency and uniformity through the determinations of an officer having State wide jurisdiction. Assessors of Springfield v. New England Telephone & Telegraph Co., ante, 198, 201-204. It is at least seriously doubtful whether these companies, which come under the special provisions introduced by the statute of 1915, have any rights under the general provisions of Sections 59 and 65, and at any rate to deny them relief through abatement by the commissioner under Section 73 would restore by means of separate appeals to the Appellate Tax Board as to particular local assessments

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the very method of separate valuations of fragments of systems which it was the clear purpose of the act of 1915 to eliminate.

Moreover, if there is any incongruity in giving the commissioner power at the instance of the taxpayer to abate an assessment after a valuation by the Appellate Tax Board on an appeal by the assessors from the commissioner's certification there would seem to be an equal incongruity in the procedure suggested by the assessors whereby the taxpayer would be remitted for an abatement to the same Appellate Tax Board that would already have fixed the valuation upon the assessors' appeal on which the taxpayer would have had no opportunity to be heard.

The decision is reversed. The order denying the commissioner's motion to dismiss the assessors' appeal to the Appellate Tax Board is reversed. Instead an order is to be entered granting the commissioner's motion to dismiss the assessors' appeal on the ground of mootness.

So ordered.