142 A. 800 | Conn. | 1928
Each of these actions has been twice before the court. The decisions in State ex rel. Foote
v. Bartholomew will be found reported in
In the third count of the return in the Foote action, it is alleged that the question of the taxation of the property against the First Ecclesiastical Society was before the board of relief upon an appeal from the doings of the assessors, and that the board of relief decided that under the statutes and law of Connecticut the property was exempt from taxation as against the Society. While, as we shall show, the decision of the board was an erroneous one, a conclusion that the property was exempt from taxation is not one which, in view of the applicable statutory provisions and previous decisions of this court, is free from difficulty, and the board, composed of laymen, might fairly and honestly reach it. That being so, the matter would not be one where mandamus might properly issue. Even a mistake in law, unless it amounts to a plain disregard of the rules established by statute or the decisions of this court for the guidance of a public official, will not justify the courts in interfering by mandamus with the exercise of a fair and honest judgment by him in a matter the duty of deciding which is imposed upon him by law. State v. Erickson,
Turning to the other counts of the return in the Foote action, we find that the first is withdrawn. The second, fifth, sixth, seventh and eighth counts set out that the property was included in the assessment list of that town; that in 1866 the Ecclesiastical Society leased the land for the term of ninety-nine years, the lease providing that the lessee should pay the taxes assessed upon it; that the property should be assessed if at all against the lessees; that it was so assessed in the list of 1924 at a valuation in proportion to that placed upon other property in the town; that neither the State, the town, nor its taxpayers have suffered any damage by reason of the failure to list the property against the Society; that, by reason of the fact that the property has for many years been assessed against the lessees, and many tax liens have been filed and now exist based upon those assessments, hardship would result to the Society and the lessees if the Society is forced to pay the tax and collect from the various lessees; and that the method of taxation which has been pursued is an equitable and fair one. InMontgomery v. Branford,
In the fourth count of the return in the Foote action, the respondents allege that the relator himself took the appeal to the board of relief referred to in the third count and mentioned above and from the denial of that appeal has appealed to the Superior Court where the matter is still pending; that he is prosecuting the action at his own expense; and that the State is not the real party in interest. But in State v. Erickson,
The only remaining count in the return alleges that the property in question was acquired by the Society subsequent to the enactment of the so-called statute of 1702, which provided that all lands, tenements, hereditaments and other estates given for the maintenance of the ministry of the gospel and for certain other charitable uses, should remain devoted to such uses and be "exempted out of the general lists of estates and free from the payment of rates"; and that the land was deeded to the Society for the purpose of the maintenance of the ministry of the gospel and all funds derived from it have been used for that purpose or for benevolent or charitable purposes. In so far as the consideration of the present demurrer is concerned, it would be sufficient to point out that it is not stated when the property was acquired and this might have occurred after the repeal of the tax exemption contained in the statute of 1702, which occurred in 1821. Osborne v. Humphrey,
The contention of the respondents that the provision as to tax exemption in the statute was contractual in its nature and that when an exemption had attached to land by reason of its having been acquired while the statute was in force, the legislature might not thereafter *253
subject the land to taxation, finds support in some of our earlier decisions; Atwater v. Woodbridge,
We entertain no doubt of the correctness of our later decisions upon this matter. In order to give to a statute granting an exemption such a contractual nature that it may not be repealed, it is necessary in the first place that there must be a clear intent to create something more than a mere privilege or bounty repealable at the will of the legislature. Rector of Christ Church
v. County of Philadelphia, 65 U.S. (24 How.) 300, 302; Grand Lodge v. New Orleans,
To give to a tax exemption the nature of a contractual obligation it must be supported by a consideration. The Supreme Court of the United States, speaking of an Act of Congress claimed to create an exemption of that nature, said: "There was no consideration. The company was required to do nothing, and did nothing in return. As between individuals the stipulation would belong to the category of nude pacts. It has no higher character because one of the parties was a State, the other a corporation, and it was put in the form of the statute. It was the promise of a gratuity spontaneously made, which might be kept, changed, or recalled at pleasure." Tucker v. Ferguson, 89 U.S. (22 Wall.) 527, 574,
Finally, it is to be remembered that to give to a tax exemption the effect of a contractual obligation is to limit the power of the legislature to mold legislation to meet the needs of the varying circumstances of the *257 times and inevitably to produce inequalities in tax burdens. Such a result is to be avoided if it can be by any reasonable intendment. Brainard v. Colchester,supra, p. 410. "To all claims of contract exemption from taxation must be applied the well-settled rule that, as the power to tax is an exercise of the sovereign authority of the State, essential to its existence, the fact of its surrender in favor of a corporation or an individual must be shown in language which cannot be otherwise reasonably construed, and all doubts which arise as to the intent to make such contract are to be resolved in favor of the State." Seton Hall College v.South Orange, supra, p. 106. These considerations confirm our view that the decisions of this court inBrainard v. Colchester and Lord v. Litchfield established that the statute of 1702 did not create a tax exemption of such a nature that the legislature might not repeal or alter it at a later date. That it had repealed it, in so far as the lands here in question are concerned, prior to October 1st, 1924, is not disputed. Public Acts of 1921, Chap. 109. It follows that the allegations in the return inserted to support the claim that the land is exempt by virtue of the provisions of the statute of 1702 do not constitute a defense to the action.
Turning to the Erickson case, we find that the first count in the return, which was in the nature of a general denial of the allegations of the complaint, was withdrawn. The second count alleges that the assessors had listed the property for taxation against the Ecclesiastical Society on January 20th, 1926, before the action was brought, and that they were without power thereafter to alter that assessment. The assessors were not required to complete the tax lists and file them with the town clerk until the 31st day of January in each year. General Statutes, 1918, § 1149. It was *258
within their power to alter the assessment at any time before the lists were completed and filed. It does not appear when the writ in this action was issued, but it is dated January 23d 1926, and we cannot assume that it was not served in time for them to alter the assessment before the lists were completed. The allegations of the complaint charge that the assessors were about to value the property, not on the basis of the "actual value" required by the statute, but by taking its annual rental as fixed more than fifty years ago and by determining the principal sum which at six per cent would return interest equivalent to that rental, and that they were about to list the property "otherwise than by parcels," in violation of the statutory provision requiring a "separate description and valuation of each parcel of real estate." On the former appeal in this case we held that mandamus properly lay to compel the assessors to proceed in accordance with these statutory mandates. State v. Erickson,
The third count alleges that an appeal was taken from the doings of the assessors acting upon the list of 1925 to the board of relief, seeking to have the property valued in accordance with the statutory provisions to which we have referred; and that the board heard the matter on February 11th, 1926, and struck the property from the tax lists for the reasons stated in a memorandum of decision attached to the return. This appeal must have been taken after the assessors had completed their work on the lists. General Statutes, *259 §§ 1230 to 1232. The allegations amount only to this, that this action may not be maintained because, after the assessors had completed their duties, another body of officials decided that the land was not taxable against the Ecclesiastical Society. Manifestly this is not a good return.
The remaining counts in the return in this action are substantially the same as those which we have already considered in connection with the Foote action and held to be insufficient to constitute any defense. As the respondents saw fit to let judgment enter against them upon the sustaining of the demurrer to the special defenses set up in the return and the demurrer to them was properly sustained, the judgment in this action must stand.
There is error in State