132 A. 30 | Conn. | 1925
This proceeding is brought to compel the board of relief of the town of Branford to include in the assessment list of the town certain real property owned by the First Ecclesiastical Society of Branford. The application, verified by the relator Foote, alleges this ownership; that the society has been leasing this land for long terms to lessees in leases containing a provision that the lessees shall reimburse the society for all sums which it may be compelled to pay in the *610 way of taxes; that the land has not been assessed for taxation for many years, and has been improved by the erection of numerous buildings upon parts thereof; that it is not within any of the exemptions from taxation provided by statute; that about four acres of this land lies adjacent to the land of Foote, which latter land he owned on October 1st, 1924, and listed for taxation according to law; and that the land of the society was not assessed in the list of that year. The application further alleges that on February 16th, 1925, Foote appealed to the board of relief from the doings of the assessors in the premises, and requested it to make a proper list of the property of the society omitted by the assessors; that his request was refused and no further action taken by the board in the premises; that power to make the list asked for is conferred upon the board by law, and particularly by Chapter 207 of the Public Acts of 1923; that the failure to assess the property places a disproportionate and unfair burden upon other taxpayers of the town, including Foote; and that the respondents are the members of the board of relief of the town.
Counting upon this application, the Superior Court issued its alternative writ of mandamus requiring the respondents to make a supplemental list of the omitted taxable property of the society and a valuation thereof for taxation, or to show cause to the contrary on the first Tuesday of May, 1925. Upon the return of the proceeding to court, respondents moved to quash the alternative writ, because (1) respondents were under no ministerial duty imposed by law, and had discretion in the premises; (2) the relator had no clear legal right to have a duty performed; (3) the relator had other sufficient remedy; (4) the respondents had performed their ministerial duty in passing upon relator's appeal from the assessors; (5) the court had no jurisdiction to *611 review by mandamus, the action of the board of relief in determining this appeal; (6) the relator had appealed to the board, therefore the provisions of the Act of 1923 had no application; (7) it did not appear in the application that the relator had requested the respondents to take action under the provisions of the last named Act; (8) there is now pending in the Superior Court an appeal by the relator from the doings of the board of relief. The court granted the motion to quash upon the fourth and fifth grounds above set forth, as indicated in the memorandum of decision, and rendered judgment for the respondents. From this judgment the petitioner appeals, setting forth the claimed errors of the court in ten reasons of appeal, which are somewhat consolidated in brief and argument, and which we will consider as there developed.
We may observe at the outset that a motion to quash is equivalent to a demurrer. Brainard v. Staub,
The appellant contends that the duty of a board of relief under the Act of 1923, in placing property omitted in the yearly tax list for assessment made by the assessors and putting a valuation thereon, is separate and distinct from its duty as an appellate body passing upon the work of the assessors, safeguarded as is their ordinary revisory action by the provision of an appeal to the Superior Court, and that *612 when an occasion arises to make a supplemental list and valuation, the board proceeds as an independent and distinct administrative unit, to the end that taxation may be equal and equitably distributed among individuals, and no taxpayer may be injured by an excessive tax upon his own property, or by the escape of other taxpayers from just taxation. So the appellant contended it is the duty of the board to make such a supplemental list, which is mandatory and not discretionary.
The trial court held that it was the duty of the board of relief to act upon a state of facts existing such as is contemplated by the Act of 1923, and to list and value property omitted by the assessors, and that the Act was mandatory and not permissive, although in describing the action to be taken the word "may" is used and not "shall." We think the court held correctly. The accepted rule in such cases is that if, in a statute conferring power and authority for the benefit of the public, or of a third person, or of individuals generally, the word "may" is used, it shall be construed as equivalent to "shall," and that the statute is mandatory and not permissive or discretionary. Lyon v. Rice,
So far the views expressed were held by the trial court and set forth in its memorandum. But the court proceeds to hold that since the board of relief exercisedquasi-judicial and discretionary powers, and it can be compelled by mandamus to act, "to perform its duties, that is, to proceed to determine whether or not the property should be placed in the taxable list, it cannot be compelled to decide that question in any particular manner." Now in the instant case the board of relief, acting under the Act of 1923, was simply a board of assessors, and a board of assessors is an administrative body, as is conceded in respondents' brief. So also is a board of relief. When acting as a board of review of doings of assessors it is still such a body. In Bugbee
v. Putnam,
It is quite evident that the counsel for respondents, and the court in supporting their contentions, do not give proper attention to the distinction between determining facts and applying the law to established facts.
In proceeding to exercise the powers conferred on it by the Act of 1923, the board deals with two main considerations: first, is a given property (omitted in the general assessment) taxable, and if so, what is its value. Speaking generally, the power of an assessing body may be thus described: "If assessors omit from the roll property which is taxable, they may be compelled to insert it on the roll on the application of the proper law officer of the State, but where discretion is involved the writ will not issue." 4 Cooley on Taxation (4th Ed.) § 1601, p. 3187. The case of People exrel. Jones v. Webb,
We think that the last quotation brings out distinctly the proper distinction between what is mandatory and what is discretionary, and of a quasi-judicial nature in the duties of a body of assessors or of a body, *616 however designated, which performs similar duties. If taxable property omitted in the regular assessment exists, it is the clear duty of the board to list it, and the right to have it listed is a clear right of the other taxpayers of the municipality wherein the property is situate. The mandate of the alternative writ enjoins, in the first place, that a supplemental list including the property of the ecclesiastical society be made; in the second place, that a valuation be made of it and proper steps be taken to forward the collection of a legal tax thereon. The first duty is not discretionary or quasi-judicial; the ensuing duty is discretionary as to the amount to be assessed, and the alternative writ does not in any way attempt to control the board's discretion.
In the application for the alternative writ and in the recitals of the writ itself, it is alleged that the land in question is not and has not for many years been assessed for taxation, nor any taxes paid thereon, and that the same is not within any of the statutory exemptions. These facts are admitted to be true by the motion to quash. So considered, in connection with the other allegations, the duty of the respondents is clear, as is also the right of the relator and those in like situation with him to enforce action by the board of relief. In case it had been desired to make the claim that the board was acting judicially in determining the application of the statutes regarding taxability of property of the ecclesiastical society, a motion in the nature of a demurrer should not have been filed, and thereby the nonexemption of the property admitted. By their own act the respondents have removed the questions of taxability and exemption from consideration, have excluded all right to claim discretionary or judicial action in construction of statutes, and stand in the position of refusing to perform a clear legal duty. *617
The writ of mandamus issues when the duty of which enforcement is sought is the performance of a precise definite act in relation to which the respondent has no discretion, when the right of the person applying for it is clear and he is without other adequate remedy.American Casualty Ins. Sec. Co. v. Fyler,
We have seen that the duty resting upon the board of relief is to do the precise and definite act of listing nonexempt property, that the right of the relator and of taxpayers similarly situated is clear; and it remains to consider whether there exists any other remedy. The respondents insist that such a remedy exists in the right of appeal from the assessors to the board of relief and thence to the Superior Court. In the instant case the relator did appeal to the board of relief. As we have said, it does not appear that he pursued his right of appeal to the Superior Court, although it is stated in the brief of respondents that he did so act. This, however, is not material in the present discussion, since, if he had the right of appeal, which is certainly the case, and did not use it, and that right furnished adequate relief, he would be equally barred whether he actually appealed or not. At this point it is proper to consider the form of the proceeding in the present case. The action is entitled of record as State, etc., exrel. Foote v. Bartholomew. In fact the application for the writ is in the name of the State's Attorney for New Haven County, without mention of any other person as relator. As Foote has been named as the relator in various parts of the record, and referred to as such in briefs and argument, we have heretofore in this opinion, for convenience, referred to him as such. Recitals as to the interest of Foote as contained in the *618
complaint are proper to show that the board of relief had knowledge of the demand of at least one taxpayer that the property of the ecclesiastical society be listed for assessment, yet it could have been brought without reference to the prior experience of Foote with the assessors and board of relief; and with allegations upon this topic omitted, it still contains allegations adequate to bring the matters in issue before the court. The verification is by Foote. This is of no importance, since it is at most superfluous and surplusage. The giving of a bond for prosecution, also noted in the alternative writ, is also superfluous. No application by a public officer for a writ of mandamus requires verification.State ex rel. Eliott v. Lake Torpedo Boat Co.,
State v. New York, N.H. H.R. Co.,
Among minor objections to the issuance of the writ is the claim that the time has expired within which the board can supplement the list in the manner prescribed in the Act of 1923, which provides that it may be done "within three months from the date prescribed by the General Statutes for the completion of its duties." That date is by statute the last business day in February. The three months would ordinarily expire on the last day of May. The present proceeding was begun April 16th, 1925, when process issued, and was returnable to the first Tuesday of May. There was an appearance in the action, a motion to quash filed May 12th and decided May 19th. There seems to have been abundant time for the board to make up its mind not to act as the alternative writ *622
directed, but rather to oppose its mandate by adopting the alternative of showing cause. When relief is sought relative to the doing of any act, the action stands or falls by the facts and governing law existing at the time of bringing suit. State ex rel. Huntington
v. Huntington School Committee,
The seventh ground in respondents' motion is that it does not appear in the application that Foote made any request to the board to act under the provisions of the Act of 1923. No such request was necessary. Where an officer or officers are charged with a duty owing to the public generally, no demand for performance is a necessary prerequisite to a mandamus proceeding. In such case the law stands as a continued demand. 18 R. C. L. p. 123, § 37, pp. 290, 291, § 220; 2 Spelling on Extraordinary Remedies (2d Ed.) § 1447; High on Extraordinary Legal Remedies (3d *623 Ed.) § 41. Looking for the moment at the merits of such a claim, we find that the board of relief had considered Foote's claim on his appeal, where the precise claim for listing this property had been made. Also, the alternative writ, served in a timely way, gave the board abundant notice and information as to the existence of claimed nonexempt property which had not been listed for taxation. They were put on inquiry formally in that way; it was their duty to investigate and act. It is suggested that the society is not a party to the proceeding. It is not a necessary party to mandamus proceeding, by generally accepted law. In this particular case, if and when its property may be listed, it has an appeal by the terms of the Act itself, to the Superior Court.
It is very evident that the point in controversy between the taxing authorities of Branford and certain of its citizens, and involving the interest of the general taxpaying public, is as to the exemption of the property of the society from taxation. Certainly this cannot be determined upon the consideration of a motion to quash, which itself admits, for purposes of determination of the motion, that the property is not exempt. That question can only be determined upon a proper return to the alternative writ. The motion to quash was erroneously granted.
There is error, and the cause is remanded to the Superior Court for further proceedings according to law.
In this opinion the other judges concurred.
AI-generated responses must be verified and are not legal advice.