(144 N.E.) As to the first count: There was evidence, were given, and the last seven are expressly from which it could be found that the one waived. The others are not specifically hundred barrels, in which the oil was sent, argued, so we treat the subject-matter therewere proper containers for oil shipments; of briefly. As regards the quantity of oil that the barrels when loaded were in fit con- shipped at Seattle, there was not only the dition, were properly dunnaged or braced in record of the certified weighers, Core & Herthe car, and passed upon by the checker of bert, but the bill of lading acknowledging the the railroad company; and that a “clean receipt of 45,770 pounds of castor oil; the bill of lading" was issued, reciting that the cars were scaled before leaving Seattle to goods were in "apparent good order." On obtain the transcontinental weight; and the arrival at West Barrington, according to way bill indicates that the shipment was the evidence, two of the barrels had broken weighed by the carrier and found to be heads and seven were in pieces "with the 46,380 pounds, or 610 pounds greater than the staves busted”—these nine barrels being plaintiff claimed. There was ample evidence empty; the dunnage, or bracing and wooden that wooden barrels were suitable containers supports, was broken down; and there was for oil shipments, and that they were propoil on and underneath the car. There was erly dunnaged. As to requests 8, 9, 10, 12 affirmative evidence, in addition to the pre- and 13, dealing with the loss on lines other sumption, that the serious harm occurred on than the New Haven, as already stated the the lines of the terminal carrier. Moore v. burden was on the defendant to prove that New York, New Haven & Hartford Railroad, the damage was one for which he was not 173 Mass, 335, 53 N. E. 816, 73 Am. St. Rep. responsible. And the agreement of coun298; Cote v. New York, New Haven & Hart- sel that the amount of the verdict should be ford Railroad, 182 Mass. 290, 65 N. E. 400, $3,380, if the jury should find for the plain94 Am. St. Rep. 656; Bullock v. Haverhill & tiff, rendered it unnecessary to determine Boston Dispatch Co., 187 Mass. 91, 72 N. what amount of leakage occurred on the E. 256; Shapiro v. Boston & Maine Railroad, connecting lines. The same is true, in addi213 Mass. 70, 99 N. E. 459, Ann. Cas. 1913E, tion to other grounds, of request 16. An ex1028.

amination of all the requests discloses no re[1-4] The burden was on the defendant to versible error in the failure to give them, so show that the cause of the loss was some far as they were not given in substance in thing for which he was not responsible. the charge. Hastings v. Pepper, 11 Pick. 41; L. L Cohen [6-10] 3. There were numerous exceptions & Co., Inc., v. Director General of Railroads to evidence. We treat only those argued by (Mass.) 142 N. E. 75. He did offer testimony the defendant, and not hereinbefore con. tending to show that some oil leakage was sidered. The words "clean bill of lading," observed at Spaulding, Illinois, East Buffalo, being a technical expression of the trade, it New York and West Springfield, Massachu- was not error to admit the testimony of setts. But under the established rule of experts to interpret the phrase. The same Lindenbaum v. New York, New Haven & is true as to the absence of “exceptions" Hartford Railroad, 197 Mass. 314, 84 N. E. in the bill of lading. The witness Davis, 129, the jury could reject or accept that tes- dock foreman at Seattle, had made an affitimony. Even if they believed it in whole davit at the time of the shipment, that he or in part, the employees on the New Haven found the barrels in first-class condition road, after being notified of the leaks by when loaded, and also properly dunnaged. the notations on the way bill, accepted the Although he had no present recollection of shipment from the preceding carrier, and these facts as stated in the affidavit, he tesshould have taken all necessary precautions tified that when he made the statements they to prevent further damage from there on. were true. Later on looking at the affidavit In short, as the plaintiff had established the he stated as a fact that the barrels were common law presumption against the term- properly dunnaged. It seems to us that the inal carrier, and the burden was on the de- affidavit itself was not admissible, although fendant to show facts that would relieve the testimony of the witness, that the statehim from liability, on this record there was ments therein as to the dunnage were truthno error in the refusal of the trial judge fully made when his recollection was fresh, to direct a verdict for the defendant on the seems to come within cases like Cumberland first count. Hannibal Railroad v. Swift, Glass Manuf. Co. v. Atteaux, 199 Mass. 426, 12 Wall. 262, 20 L. Ed. 423; Chicago & 85 N. E. 536, and Gurley v. Springfield Northwestern Railway v. Whitnack Co., 258 Street Railway, 206 Mass. 534, 92 N. E. 714. U. S. 369, 42 Sup. Ct. 328, 66 L. Ed. 665; In any event, the testimony and affidavit Atlantic Coast Line Railroad v. Rice, 169 were only cumulative evidence. The carrier Ala, 265, 52 South. 918, 29 L. R. A. (N. S.) was free to refuse this shipment if not satis1214, Ann. Cas. 1912B, 389; Paramore v. fied with the condition of the lading; and Western Railroad, 53 Ga. 383; Wabash Rail- having accepted it, and issued a clean bill of road v. Priddy, 179 Ind. 483, 101 N. E. 724. lading, it assumed the usual obligations of a

[5] 2. Of the twenty-six rulings requested carrier. L. L. Cohen, Inc., v. Director General . by the defendant, those numbered 5 and 6 of Railroads, supra. In other words, even as

144 N.E.-5

suming that there was error in admitting the 5. Removal of causes em89(2)—Allegations of affidavit, or the testimony relating to its law, inserted in petition for removal, not accontents, it did not affect the substantial cepted as sound or binding by state court. rights of the defendant. G. L. c. 231, 8 132; Allegations of law inserted in petition for Batchelder v. Home National Bank, 218 removal are not accepted as sound or binding Mass. 420, 105 N. E. 1052; Noyes v. Noyes, in state court, and must be critically examined

and stand or fall on their own merits. 224 Mass. 125, 112 N. E. 850; Duggan v. Bay State Street Railway, 230 Mass. 370, 6. Removal of causes m47_State is not citi. 383, 119 N. E. 757, L. R. A. 1918E, 680.

zen as regards diversity. The testimony offered by the defendant, that The state is not a citizen, and diversity of in 1923 the practice was to use metal con- citizenship cannot be predicated on an aver. tainers, and that they were considered better ment to that effect. than wood, was, properly excluded, in some 7. Removal of causes 41-Whether suit instances, because the witnesses were not against state determined from entire record. qualified as experts to the satisfaction of Question whether suit is against state is the trial judge. And generally, the shipment to be determined, not by mere names of titular in question was in July 1918; it was accepted parties, but by essential nature and effect of by the defendant in wooden barrels, loaded proceeding, as it appears from entire record. as they were in tiers. Indeed it was in 8. Removal of 'causes 41-Action by com. evidence that during the war period the rail- missioner of corporations and taxation to reroad administration requested loading to cover income tax suit by state. capacity, or double loading. Finally, it is A suit by commissioner of corporations and to be borne in mind that the plaintiff, as pur- taxation in name of commonwealth to enforce chaser of a negotiable bill of lading, had a payment of income tax to commonwealth is a right to rely on the recital therein that the suit by state, and there can be no removal on shipment was received “in apparent good cial Code, g 28 (U. S. Comp. St. § 1010),

ground of diversity of citizenship under Judiorder.” An examination of the entire rec- though defendant in petition for removal alord discloses no reversible error in the ad- leges that assessment of tax was unlawful and mission or exclusion of evidence.

confiscatory and personal act of commissioner, Exceptions overruled.

in view of G. L. c. 62, 88 41 (as amended by
St. 1923, c. 287, § 3), 43, 47.
9. Taxation 2-Lory and collection of tax.
es only by order of supreme power of state.

Taxation is exercise of essential attribute
COMMONWEALTH V. NORMAN. of sovereign power, and taxes cannot be col-

lected, except by order of supreme power of (Supreme Judicial Court of Massachusetts.

state, and only for benefit of state. Suffolk. May 23, 1924.)

10. States Om 191 (2)-Suit to restrain execu

tion of unconstitutional statute not suit 1. Removal of causes 89(2)-Duty of state against state. court in passing on petition for removal

Suit to restrain state officer from executstated.

ing unconstitutional statute to irreparable damIt is duty of state court, in passing on age of plaintiff's rights is not suit against petition for removal, to determine whether on state, but against individuals acting outside face of record a cause for removal is made out. zone of their lawful authority. 2. Removal of causes 89(2)-Issues of fact cannot be tried in state court.

Appeal from Superior Court, Suffolk Coun. On petition for removal, issues of fact ty; Wait, Judge. raised cannot be tried in state court, but must Action of contract by the Commonwealth be heard and decided in federal court on peti-l of Masschusetts against Maxwell Norman, tion to remand.

brought in the superior court. From an or. 3. Removal of causes Om89(2)-Allegation of der accepting defendant's petition and bond

fact in petition must be accepted as true by for removal of cause to District Court of state court.

United States, plaintiff appeals. Order reAll allegations of fact in petition for re- versed. moval must be accepted as true by state court for purpose of determination.

A. Lincoln, Asst. Atty. Gen., for the Com

monwealth. 4. Removal of causes 89(2, 3)-Whether W, A. Dane, of Boston, for appellee.

cause for removal made out on face of rec. ord question of law to be decided by state court.

RUGG, C. J. This is an action of contract. Whether a cause for removal is made out It was brought originally in our superior on face of record is question of law, which court. It comes before us on appeal from must be decided by state court on petition for an order of that court accepting the defendremoval, subject to review by Supreme Court ant's petition and bond for removal of the of United States.

cause from that court to the District Court For other cases see same topic and KEY-NUMBER 1n all Key-Numbered Digests and Indexes

[ocr errors]

(144 N..) of the United States for the District of Mas- , 34 Sup. Ct. 278, 58 L Ed. 544. Whether a sachusetts. It is rightly before us. Long cause for removal is made out on the face of v. Quinn Bros., 215 Mass. 85, 86, 102 N. E. the record is a question of law which must 348; Samuel v, Page-Storms Drop Forge Co., be decided by the state court subject to re243 Mass. 133, 134, 137 N. E. 169. No ques- view by the Supreme Court of the United tion is raised as to the form or seasonableness States. Eaton v. Walker, 244 Mass. 23, 27, of the petition for removal, the sufficiency of 138 N. E. 798, and cases there collected. It the bond, or the jurisdictional amount in- follows as an inevitable corollary' to this volved.

proposition that the allegations of law inThe petition alleges that at all times cru- serted in a petition for removal are not accial to the decision of issues here raised be cepted as sound or binding. So far as mawas a citizen of the state of Rhode Island; terial they must be critically examined and that, both individually and as trustee with stand or fall on their own merits. another by appointment of the appropriate [6] It has been held repeatedly that under court of the state of Rhode Island under the removal statute a state is not a citizen a will duly admitted to probate in that state, and hence diversity of citizenship cannot be he has been unlawfully assessed a tax on in- predicated on an averment to that effect. An come under the laws of this commonwealth action between a state and a citizen, thereand that the action is to recover such tax; fore, cannot be removed. Postal Telegraph that the present action is a proceeding by Cable Co. v. Alabama, 155 U. S. 482, 487, Henry F. Long, “commissioner of corpora- 15 Sup. Ct. 192, 39 L. Ed. 231; Title Guartions and taxation, brought in the name of anty Co. v. Allen, 240 U. S. 136, 140, 36 Sup. the commonwealth of Massachusetts to en-Ct. 345, 60 L. Ed. 566; Arkansas v. Kansas force unlawful exactions

under & Texas Coal Co. 183 U. S. 185, 188, 22 Sup. the alleged authority of the said income tax Ct. 47, 46 L. Ed. 144; McAllister v. Chesalaw of Massachusetts and that it is a con-peake & Ohio Railway, 243 U. S. 302, 305, fiscatory and unconstitutional enforcement of 37 Sup. Ct. 274, 61 L. Ed. 735; Alabama said income tax law violation of the 'due Southern Railway V. Thompson, 200 U. S. process' and 'equal protection' clauses” of the 206, 216, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Fourteenth Amendment of the United States Ann. Cas. 1147; Great Northern Railway v. Constitution; that the present action is for Alexander, 246 U. S. 276, 280, 281, 38 Sup. the collection of such income taxes; that Ot. 237, 62 L. Ed. 713. the assessment of such taxes was "an un- [7] The defendant does not dispute this lawful exaction and a confiscatory and un principle. He seeks by the allegations of constitutional enforcement of said income his petition to show that the action is not tax law

is wholly unauthorized by the commonwealth as plaintiff, but by and is therefore the personal act of the one Long. For the purpose of deciding this commissioner of corporations and taxation, question we accept as controlling a principle the said Henry F. Long, so that he, the said stated in another connection for determining Henry F. Long, and not the commonwealth whether a state is a party: of Massachusetts, is the real party plaintiff," and that he is a citizen of Massachusetts,

"As to what is to be deemed a suit against and that accordingly the action is between tion might be confined to those in which the

a state, the early suggestion that the inhibicitizens of different states. The sole ques- state was a party to the record (Osborn v. tion for decision is whether on this record United States Bank, 9 Wheat. 738, 846, 850, the action is removable on the ground that 857), has long since been abandoned, and it is it “is wholly between citizens of different now established that the question is to be destates" and can be fully determined as be-termined not by the mere names of the titular tween them under section 28 of the Judicial parties but by the essential nature and effect Code (36 U. S. Stats. at large, c. 231, Act of the proceeding, as it appears from the en

tire record.” Ex parte State of New York, March 3, 1911 [U. S. Comp. St. § 1010]). (1-5) It is the duty of the state court, in No: 1, 256 U. S. 490, 500, 41 Sup. Ct. 588, 590

(65 L. Ed. 1057). passing upon a petition for removal of an action to a District Court of the United

[8] This confessedly is an action to colStates, to determine whether on the face of lect a tax assessed under the statutes of the record a cause for removal is made out this commonwealth. The attempt is made If any issues of fact are raised, these can- to enforce it according to the statutes of this not be tried in the state court but must be commonwealth. The question who is enheard and decided in the federal court on titled to bring action to collect such a tax a petition to remand. All allegations of fact depends upon the interpretation of the statin the petition for removal must be accepted utes of this commonwealth. The collection as true by the state court for the purpose of of income taxes under our statutes is govdetermining whether it ought to surrender erned by G. L. c. 62, § 41, as amended by jurisdiction. Long v. Quinn Brothers, 215 | St. 1923, c. 287, $ 3: Mass. 85, 87, 102 N. E. 348; Chesapeake &

"If a tax assessed under this chapter remains Ohio Railway v. Cockrell, 232 U. S. 146, 154, unpaid after the expiration of fourteen days

from the date when due, interest at the rate of , Taxes cannot be collected except by order of six per cent, per annum from the due date the supreme power of the state. They can shall be added to and become part of the tax. be collected only for the benefit of the state. The commissioner, and the income tax assess. When the commonwealth in the exercise of ors in their respective districts, shall have for this sovereign power has declared that the the collection of taxes assessed under this chapter all the remedies provided by chapter rights it alone had power to create shall be sixty for the collection of taxes on personal enforced in its name alone, it hardly seems estate by collectors of taxes of towns, and open to debate that the commonwealth is shall be allowed charges and fees as therein the sole party in interest to an action to provided. Any action of contract brought to collect a tax. recover any such tax shall be brought in the

It is wide of the mark to say that on paine of the commonwealth."

the averments of this petition for removal

the tax cannot be lawfully collected. That The express words of the statute are that has no relevancy to the question whether the actions to collect such taxes shall be brought commonwealth is the sole party plaintiff inin the name of the commonwealth. That terested in the decision of that question. In requirement of the statute but conforms to Postal Telegraph Cable Co. v. Alabama, 155 the nature of income taxation under our statutes. The income tax is a state tax. It Ed. 231) occurs this:

U. S. 482, 487, 15 Sup. Ct. 192, 194 (39 Lu is levied, collected and disbursed by state officers. The entire proceeds of the tax find

"A state is not a citizen. And under the Jutheir way into the treasury of the common- diciary Acts of the United States it is well set.

tled that a suit between a state and a citizen wealth and are disbursed exclusively for

or a corporation of another state is not bepublic uses. Duffy v. Treasurer and Receiver tween citizens of different states, and that the General, 234 Mass. 42, 47, 125 N. E. 135. Circuit Court of the United States has no ju

The commonwealth is named as party to risdiction of it, unless it arises under the Conthis action. Its name alone is in the writ stitution, laws or treaties of the United States. and caption. It is not a mere nominal party. Ames v. Kansas, 111 U. S. 449; Stone v. It is the real party in interest. No one else South Carolina, 117 U, S. 430; Germania Ins. has any interest in the outcome of the action. Co. v. Wisconsin, 119 U. S. 473. It is equally It is difficult to conceive of any administra- referred to, of the existing act of Congress, no

well settled that under the provisions, above tive or executive subject in which the com- suit can be removed by a defendant from a monwealth is more deeply or more directly state court into the Circuit Court of the United concerned than the collection of the income States, as one arising under the Constitution, and other state taxes. We do not deem it laws or treaties of the United States, unless necessary to go through the statutes with the fact that it so arises appears by the plainmeticulous detail to demonstrate that the tiff's statement of his own claim, and that a state has a primary, intimate and inherently deficiency in his statement, in this respect, canessential relation to the collection of this not be supplied by allegations in the petition tax. The gain therefrom is the gain of the for removal, or in subsequent pleadings in the

case, Tennessee V. Bank of Commerce, 152 commonwealth alone. Loss from failure to U. S. 454; Chappell v. Waterworth, ante (155 collect is loss to the commonwealth alone. U. S.] 102."

Proceedings for abatement of income taxes or for recovery of such taxes unlawfully [10] A suit in equity to restrain a state exacted, although brought by mandate of officer from executing an unconstitutional G. L. C. 62, SS 43, 47, against the commissioner statute to the irreparable damage of the of corporations and taxation, are in sub- plaintiff's rights is not a suit against the stance and effect against the commonwealth. state, but against individuals acting outside No judgment or decree in ordinary form is the zone of their lawful authority and hence made up and no execution runs against him. not protected by any immunity. Ex parte He is so wholly a representative of the com- | Young, 209 U, S, 123, 150, 155, 28 Sup. Ct. monwealth that in case of change in the 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, person holding the office during the pendency 14 Ann. Cas. 764; Greene v. Louisville & of the proceedings, no amendment is neces- Interurban Railroad Co., 244 U. S. 499, 506, sary to substitute his successor as party. 37 Sup. Ot. 673, 61 L. Ed. 1280, Ann. Cas. All this was decided in Raymer v. Tax Com- 1917E, 88; Greene v. Mayor of Fitchburg, missioner, 239 Mass. 410, 132 N. E. 190. If | 219 Mass. 121, 106 N. E. 573; Shuman v. abatements are granted, repayment is made Gilbert, 229 Mass. 225, 227, 118 N. E. 254, directly by the treasurer and receiver general L. R. A. 191SC, 135, Ann. Cas. 1918E, 793. from the treasury of the commonwealth, G. That is a principle of general application. It L. C. 62, SS 43, 45, 47; and costs of suit in is not contined to the relations of federal and case the commonwealth is defeated, are paid state courts. Its invocation has been upheld in like manner out of the state treasury, sec- with respect to confiscatory conduct of oftion 47.

ficers acting illegally under the pretended [9] The levying and collection of taxes is cloak of a valid statute. Reagan v. Farthe exercise of one of the highest and most mers' Loan & Trust Co., 154 U. S. 362, 390, essential attributes of a sovereign power. 14 Sup. Ct. 1047, 38 L. Ed. 1014; Raymond

(144 N.E.) v. Chicago Union Traction Co., 207 U. S. 20, 3. Evidence 450 (4)-Lease held unambigu38, 28 Sup. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. ous and parol evidence inadmissible in ex757; Hopkins v. Clemson College, 221 U. S. planation thereof. 636, 645, 31 Sup. Ct. 654, 55 L. Ed. 890, 35

A lease for term of one year beginning with L. R. A. (N. S.) 243. That principle, however, stood however that if in any event said prem

"first day of July. *

It being underhas no relevancy to the question raised on this record, where the commonwealth is 1st, he is to begin paying rent from time he

ises can be delivered to said D. before July the only 'nominal and only real party in is notified,held not ambiguous, and evidence interest. Here "the relief sought is that that lessee stated to lessor before execution of which enures to it alone, and in its favor lease that he would not take premises if he the judgment or decree, if for the plaintiff, could not get them by July 1st was inadmiswill effectively operate.” Missouri, Kansas sible. & Texas Railway v. Missouri Railroad & 4. Frauds, statute of Cm 56(6)-Lease of land Warehouse Commission, 183 U, S. 53, 59, 22

must be in writing to be foundation of action. Sup. Ct. 18, 21 (46 L. Ed. 78).

A lease of land relates to real estate and The case at bar seems to us to be governed must be in writing in order to be foundation of by what is succinctly said and the cases cited action for rent, under G. L. c. 183, § 3, and in Chicago, Rock Island & Pacific Railway v. chapter 259, § 1, and parol statements conNebraska, 251 Fed. 279, 280, 163 C. C. A. 435, cerning when possession should be taken canrespecting a case removed from the state to not be considered equivalent to subsequent ad

dition of condition. the United States court:

"The question of jurisdiction was not raised 5. Frauds, statute of Cm 158(4)-Evidence held in the court below. There was no motion by

not to warrant finding of surrender of lease the state to remard the case to the state court.

and acceptance in view of statute. The suit as for certain taxes imposed under Evidence held not to warrant finding of the laws of the state of Nebraska. A state is surrender by lessee and acceptance by lessor, not a citizen. Stone v. South Carolina, 117 U. especially in view of G. L. c. 183, § 3, providS. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Postal ing no estate or interest in land shall be surTelegraph Cable Co. v. Alabama, 155 U. S. 482, rendered except in writing or by operation of 15 Sup. Ct. 192, 39 L. Ed. 231; Arkansas v. law. Kansas & Texas Coal Co., 183 U. S. 185, 22 Sup. Ct. 47, 46 L. Ed. 144; Title Guaranty' Co. 6. Landlord and tenant Om 231(6)-Evidence

held insufficient to show exclusion of tenant V. Allen, 240 U. S. 136, 140, 36 Sup. Ct. 345, 60 L. Ed. 566. Therefore the court below did

from premises. not have jurisdiction by virtue of diversity of

Evidence held insufficient to show exclusion citizenship."

of tenant from demised premises by landlord

with intention of depriving him of access thereThe case at bar seems to us distinguish- to to which tenant yielded, abandoning his able in essential particulars from Ohio v. rights. Swift & Co. (C. O. A.) 270 Fed. 141. But,

7. Appeal and error om 173(2)-Tenant cannot if it is not, we are constrained for the rea

raise contention, first on review of excepsons already stated not to follow it.

tions, that he was excluded from premises by Order reversed.


In action for rent, defendant cannot raise contention for first time on review of exceptions that he was excluded from premises by

plaintiff. SNIDER V. DEBAN.

8. Landlord and tenant en 185_That previous (Supreme Judicial Court of Massachusetts.' tenant held over no defense to action for Suffolk. May 23, 1924.)

rent. 1. Evidence 397 (1)—Previous negotiations ration of his term without right and without

That previous tenant held over after expiand contemporaneous discussion merged in connivance of lessor constitutes no defense to written agreement.

aetion for rent under lease. Previous negotiations and contemporaneous discussions are merged in a written agree-| 9. Landlord and tenant au 129(1)-Lessee, and ment of unambiguous terms, which is conclu- not lessor, can maintain summary process sively presumed, in absence of fraud or mis- against previous tenant holding over. take, to express whole intent of parties.

By G. L. c. 239, § 1, lessee is entitled to 2. Evidence em 448—Rule stated as to admis- maintain summary process against preceding

sibility of extraneous evidence to explain tenant holding over without right, and lessor written instrument.

cannot maintain such an action. It is only when meaning of written instrument is not plain or becomes doubtful in its

Exceptions from Superior Court, Suffolk application to a particular transaction that ex- County; Marcus Morton, Judge. traneous evidence is admissible to explain sig.

Action of contract by Ellis L. Snider nificance of terms used or to show relations and methods of parties in light of which writ- against Fares G. Deban to recover grant of ten words are to be interpreted.

premises. Verdict was directed for plaintiff, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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