ASSESSORS OF HAVERHILL vs. J. J. NEWBERRY CO. (and a companion case [Note p469]).

SPALDING, J. These are appeals by the board of assessors of Haverhill and the J. J. Newberry Co., hereinafter called the taxpayer, from decisions of the Appellate Tax Board, hereinafter called the board, in two cases granting in part and denying in part abatement of taxes assessed for 1950 and 1951 upon certain personal property owned by the taxpayer. Since both cases present the same basic issue and were considered together by the board, they will be so considered here.

The question for decision is whether certain personal property of the taxpayer was taxable locally as "machinery used in the conduct of the business" within G. L. (Ter. Ed.) c. 59, § 5, Sixteenth, as appearing in St. 1941, c. 467.

Findings of the board include the following: The taxpayer is a foreign business corporation as defined in G. L. (Ter. Ed.) c. 63, § 30, as amended, and operates a retail department store in Haverhill in which it sells the sort of merchandise usually found in such stores. In connection with the store it also operates a lunch counter. As of January 1, 1950, and 1951, the taxpayer owned and used at its store the property which is the subject matter of this controversy, namely, cash registers, typewriters, safe, calculating machine, soda fountains, dispensers, scales, steam table, Silex unit, toaster, grill, fudge heater, deep freeze, potato peeler, dishwasher, refrigerator, mixing machine, slicer, cooling fans, marking machine, and type setting machine.

The assessors considered all of this property to be "machinery used in the conduct" of the taxpayer's business and therefore not within the exemption provided by § 5, Sixteenth, of c. 59. As to seven items, namely, the dispensers, soda fountains, toaster, potato peeler, dishwasher, slicer, and mixer, the board agreed with the assessors. As to the remainder, the board was of opinion that it was not

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"machinery" and was therefore exempt. The decision of the board did not satisfy either party and each has appealed.

General Laws (Ter. Ed.) c. 59, § 5, Sixteenth, so far as here material, exempts from local taxation ". . . property, other than real estate, poles, underground conduits, wires and pipes, and other than machinery used in the conduct of the business, owned by . . . foreign corporations, as defined in section thirty of chapter sixty-three" (emphasis supplied). The words "machinery used in the conduct of the business" first came into § 5, Sixteenth, by St. 1924, c. 321, § 1. Prior to that time the statute permitted the taxation of machinery locally only to the extent that it was "used in manufacture." G. L. c. 59, § 5, Sixteenth, as amended by St. 1921, c. 486, § 16. The purpose of the 1924 amendment was to extend local taxation to machinery used by nonmanufacturing business corporations. The taxpayer does not argue the contrary but suggests that the machinery to be taxed was to be of the same type as that used by manufacturing corporations. In other words, the statute, it is urged, was designed to remedy the situation brought about by several decisions of this court holding that the machinery of certain corporations was exempt from local taxation because they were not engaged in manufacturing although the machinery involved was quite similar to that employed by manufacturing corporations. [Note p471] To impute such an intent to the Legislature would be sheer conjecture. We find nothing in the legislative history of the statute to support it. In Assessors of Brockton v. Brockton Olympia Realty Co. 322 Mass. 351, where substantially the same contention was considered and rejected, we held that the word "machinery" must be construed in accordance with the common and approved usage of the language.

The only decisions interpreting the language of the statute under consideration are the Olympia case, just mentioned,

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and Collector of Taxes of Boston v. Cigarette Service Co. Inc. 325 Mass. 162. In the Olympia case we held that projection equipment, sound reproducing equipment, a generator and an induction motor for operation of an organ, used in operating a motion picture theatre, were "machinery" within the purview of the statute. In the Cigarette Service case we held that cigarette vending machines were "machinery." In the Olympia case we said, "Possibly . . . the word 'machinery' as used in G. L. (Ter. Ed.) c. 59, § 5, Sixteenth . . . is not the equivalent of 'machine' or 'mechanism.' . . . Perhaps there may be mechanical devices that a corporation might employ which are not machinery. But it will be time enough to decide those questions when they arise" (page 355). These questions, or at least some of them, are now before us.

Speaking broadly, we are of opinion that a mechanical device which can fairly be said to be a machine must be treated as "machinery" under the statute. To hold otherwise would render the statute unworkable. Until a given machine had been passed on by the board or this court, no one could say with any certainty whether it was or was not "machinery." To say that one machine was "machinery" and another was not would often result in hair splitting distinctions which would be difficult, if not impossible, to reconcile. Each classification made by the board or court would be an invitation to litigate in the next controversy, for there would always be the hope that the device involved would fall on the other side of the line. Numerous decisions instead of bringing certainty into the statute would only create confusion. It is to be remembered that this is a taxing statute which has to be administered in a practical way by local boards of assessors. To place a construction on it that would challenge the dialectic ingenuity of a medieval philosopher could hardly have been intended by the Legislature. Even under our construction there will still be difficulties. In these days when so many things are done with the aid of mechanical devices of one sort or another vexing questions as to whether

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a given device can be classed as a machine or machinery will undoubtedly arise. But the present construction seems to us to furnish a practical working guide.

We turn now to the application of the principles just discussed to the case at hand. The board made detailed findings of fact with respect to how the various devices in question were operated, and pictures of many of them are before us. The property which the board determined to be "machinery" was the following: 4 dispensers, 2 soda fountains, a toaster, a potato peeler, a dishwashing machine, a slicer, and a mixing machine. The board's findings touching these devices are set forth in the footnote. [Note p473] We agree

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with the conclusions of the board to the effect that this property was "machinery" and hence subject to local taxation.

The property which, according to the board, was not "machinery" was the following: 39 cash registers, a safe, a calculating machine, 2 typewriters, 1 steam table, 1 Silex unit, 1 grill, 1 fudge heater, 1 deep freeze, 1 refrigerator, 7 scales, 1 marking machine, 1 type setting machine, and 8 cooling fans. We have no hesitation in agreeing with the board's conclusion with respect to the safe. It was "of standard type" and was "used for the safekeeping of money and business records." By no reasonable test can this be classed as "machinery."

The remaining property in this group, however, presents questions of more difficulty. We think that the scales, steam table, fudge heater, Silex unit, and grill, descriptions of which appear in the footnote, [Note p474] were also rightly held not

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to be "machinery." It is our opinion that the other items, namely, the cash registers, calculating machine, typewriters, marking machine, type setting machine, electric fans, deep freeze unit, and refrigerator, descriptions of which also appear in the footnote, [Note p475] can fairly be said to be machines and hence ought to be classed as "machinery" under the statute.

It follows that the taxpayer is entitled to an abatement but not in the amount granted by the board. Accordingly the decisions of the board are reversed and the cases are remanded to the board so that the abatement can be recomputed in conformity with this decision.

So ordered.