311 Mass. 341 | Mass. | 1942
This is a petition for mandamus brought in this court by citizens of the city of Quincy against the assessors of said city and particularly the assessor who is clerk of the board of assessors, and against the commissioner of corporations and taxation. The petitioners allege that they have requested the respondent assessors to allow [he petitioners to examine at reasonable times the ‘ ‘ abatement record books and the records of the votes, orders and proceedings of the board of assessors” in their possession, and that such assessors have refused to allow such examination. It is alleged that the assessors so refused by reason of the “directions, commands and instructions” of the respondent commissioner. The petition alleges a similar request of the
The petitioners pray for a writ of mandamus directed to the respondent assessors requiring them to permit the petitioners to examine at reasonable times the records referred to, for a like writ directed to the respondent assessor who is clerk of the board, and also for a writ of mandamus directed to the respondent commissioner requiring him to cease and refrain from instructing the other respondents not to permit examination of such records. No question has been raised that there is any improper joinder of parties respondent.
The respondent commissioner demurred to the petition, assigning as a reason that “Under G. L. c. 58, § 1, the commissioner is required to 'give his opinion to assessors and collectors upon any question arising under any statute relating to the assessment and collection of taxes’; that it appears from the allegations of the petition that the commissioner’s letter of April 2, 1940, was in the nature of an opinion to the assessors of Quincy 'relating to the assessment and collection of taxes’; that even if said opinion is erroneous in law, the respondent cannot be ordered by a writ of mandamus to desist from the performance of his statutory duty.” A statement of agreed facts signed by the other respondents and the petitioners was filed in the case. , * ‘
1. The demurrer of the commissioner was sustained rightly.
The respondent assessors are not subordinates of the respondent commissioner in the sense that they are members, either as subordinate officers or employees, of the department of corporations and taxation, which is under the supervision and control of the commissioner. Art. 66 of the Amendments to the Constitution of the Commonwealth. G. L. (Ter. Ed.) c. 14. The assessors are not his agents. They are public officers selected by the municipalities of the Commonwealth charged by statute with the performance of certain specified duties, and are not State officers in the ordinary sense of the term. G. L. (Ter. Ed.) c. 59. See Walker v. Cook, 129 Mass. 577, 578; Cox v. Segee, 206 Mass. 380, 382; Duffy v. Treasurer & Receiver General, 234 Mass. 42, 47; Opinion of the Justices, 167 Mass. 599, 600. However, in G. L. (Ter. Ed.) c. 58, there are several sections (§§ 1-8, as amended) under the subheading “Supervision of Local Taxation” by which certain duties with respect to local taxation are imposed upon the commissioner. But in the performance of their statutory duties the assessors act under the direction of the commissioner only so far as the power of direction is conferred upon him by statute. Several sections of G. L. (Ter. Ed.) c. 58, amended in some particulars, require the commissioner to furnish information to the assessors. §§ 1, 2, 3. Section 3, as amended, provides that the commissioner shall furnish information “relating to the assessment, valuation and ownership of property taxable in their town” and shall give them “any further instruction and supervision as to their duties needed to secure uniform assessment and just taxation” and to equalize the valuation of property for the purpose of taxation. Section 4 provides that in certain cases the commissioner shall “direct” the assessors to
The matter with respect to which the respondent commissioner, according to the allegations of the petition, advised the respondent assessors by letter, does not fall within any of the provisions above set forth authorizing the commissioner to require or direct action by the assessors, or even to instruct or supervise with respect to such action. At most, the duty of the commissioner with respect to matters referred to in this letter was to “give his opinion” to assessors “upon any question arising under any statute relating to the assessment and collection of taxes.” § 1. We assume in favor of the petitioners, without deciding, that the advice given by the commissioner to the assessors by letter was given in pursuance of his duty to “give his opinion.” In any event the advice so given cannot be regarded as in the nature of a direction to the assessors or anything more than an expression of his opinion upon a matter with respect to which the responsibility for action was on the assessors.
Whether or not there is a statutory duty upon the commissioner enforceable by mandamus, as a ministerial duty, to “give his opinion” to the assessors, mandamus will not lie to compel him to advise the assessors by such an opinion
2. The case against the respondent assessors comes before us on a statement of agreed facts without decision by the single justice. The statement of agreed facts sets forth in greater detail and with some differences in form of statement the facts alleged in the petition. This statement of agreed facts describes the records that the petitioners requested the assessors to permit the petitioners to examine — a request that was refused — ■ as “the records which it is provided by General Laws, Chapter 59, Section 60 shall be kept by them and also the records, in so far as they relate to action taken upon applications for abatement, which it is provided by General Laws, Chapter 66, Section 6 shall be kept by the Clerk of the Board of Assessors,” and the records that the petitioners requested the clerk to permit them to examine — a request that was refused — as the records referred to as required to be kept by the clerk. Further statement of facts is not required.
There is no contention by the respondent assessors that the petitioners are not entitled to a writ of mandamus against the assessors, as prayed for, if the records described in the statement of agreed facts are “public records” within the meaning of G. L. (Ter. Ed.) c. 66, § 10, providing, so far as here material, that “Every person having custody of any public records shall, at reasonable times, permit them to be inspected and examined by any person, under his supervision.” See Hurley v. Board of Public Welfare of Lynn, 310 Mass. 285. General Laws (Ter. Ed.) c. 4, § 7,
General Laws (Ter. Ed.) c. 59, § 60, referred to by the petitioners in their request of the assessors as describing the records that they sought permission to examine, in force at the time the request was made and at the time the petition was brought, provided: “Every board of assessors shall keep a record of all abatements of taxes. The record of abatement of the whole or any part of any tax shall show plainly the following details, viz.: . . . [nine separate items are there described, but no specific reference is made to the application for abatement]. If the record of an abatement is made as a part of the record of a meeting of the board of assessors it shall be signed by the clerk or secretary of the board for that meeting; otherwise by a majority of the board.” General Laws (Ter. Ed.) c. 66, § 6, also referred to in the request by the petitioners of the assessors, and referred to in the request by the petitioners of the clerk of the board of assessors, provides, in part: “Every department, board, commission or office of the commonwealth or of a county, city or town, for which no clerk is otherwise provided by law, shall designate some person as clerk, who shall enter all its votes, orders and proceedings in books and shall have the custody of such books, and the department, board, commission or office shall designate an employee or employees to have the custody of its other public records.”
Clearly the “record of all abatements of taxes” that by
But no such contrary intention clearly appears. There is nothing in the general nature of the records that would take them out of the application of G. L. (Ter. Ed.) c. 66, § 10, as in the case of accident reports to the Industrial Accident Board. See Gerry v. Worcester Consolidated Street Railway, 248 Mass. 559, 566-568. And see Round v. Police Commissioner of Boston, 197 Mass. 218. On the contrary, the matter of the extent to which abatements of local taxes are granted is one in which the public has an interest, as it has in the valuation and assessment for local taxation, with respect to which the statute provides expressly for “public inspection” of valuation and assessment books or copies thereof. G. L. (Ter. Ed.) c. 59, § 43. Cox v. Segee, 206 Mass. 380, 382-383. It is argued, in substance, that this express provision for “public inspection” imports that without such an express provision these books would not have been “public records” subject to inspection under the
When this case was presented to this court, it was stated in the brief for the respondent assessors that a petition for legislation relating to the subject of public examination of records of abatements had been presented to the General Court. Since that time such legislation has been passed and has taken effect in the form of a substitution by St. 1941, c. 209, of a new § 60 in c. 59 of the General Laws. This new statute makes various changes in the language of the section, but makes no change in the details of the record except to omit a requirement, in certain cases, of “the cause or reason for the abatement.” There are, however, other changes. By the new section the “record of abatement” is to be “signed by a majority of the board,” the records are required to be “kept ... in a book or set of books,” such “book or books, or copies thereof, shall be open to public inspection at reasonable times pursuant to such regulations as the commissioner may prescribe,” and “ Applications for abatement under this chapter shall, except in proceedings before the county commissioners, the appellate tax board or a court of the commonwealth, be open only to the inspection of the assessors, the commissioner, the deputies, clerks and assistants of either the assessors or the commissioner and such other officials of the commonwealth or of its political subdivisions as may have occasion to inspect such applications in the performance of their official duties.”
The changes in G. L. (Ter. Ed.) c. 59, § 60, do not deprive the petitioners of their right to examine the records included in their request, except in so far, if at all, as the statute in its present form limits the scope of the permissible examination or inspection. See Hurley v. Board of Public Welfare of Lynn, 310 Mass. 285, 288. Whatever may have been true before the changes in the statute, the petitioners are not now entitled to examine or inspect applications for abatement. The petitioners, however, are entitled “at reasonable times,” subject to such reasonable regulations,
The respondent assessors make no contention that, upon the records in question being held to be public records, the writ of mandamus should not issue against all the assessors but should issue solely against the assessor who is clerk of the board.
Order sustaining demurrer affirmed.
Writ of mandamus in conformity with this opinion to issue.