Chamber of Commerce of Greater Waterbury, Inc. v. Murphy

• Decision Date: 28 February 1980
• Citation: 427 A.2d 866,179 Conn. 712
• Court: Connecticut Supreme Court
• Parties: CHAMBER OF COMMERCE OF GREATER WATERBURY, INC. v. Eugene A. MURPHY, Assessor of the City of Waterbury (Leo Iorio, Substituted Defendant), (two cases).

Page 866

427 A.2d 866

179 Conn. 712

CHAMBER OF COMMERCE OF GREATER WATERBURY, INC. v.Eugene A. MURPHY, Assessor of the City of Waterbury (Leo Iorio, Substituted Defendant), (two cases).

Supreme Court of Connecticut.

Argued Feb. 27, 1980.

Decided Feb. 28, 1980.

Thomas K. McDonough, with whom were Anthony A. Casagrande and Carl R. Cicchetti, Waterbury, for appellant(defendant).

Anthony M. Fitzgerald, Waterbury, with whom was John C. Bullock, Cheshire, for appellee(plaintiff).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

COTTER, Chief Justice.

This court decided on February 28, 1980, that the conclusions of the trial court were legally correct and could not be disturbed.The following is the full opinion of this court.

The plaintiff, a property owner and taxpayer in the city of Waterbury, brought this action seeking a writ of mandamus requiring the defendant, the sole assessor for the city of Waterbury(hereinafter the city) to fulfill his statutory duty of revaluing real property every ten years, in accordance with General Statutes § 12-62, ¹ by filing a revalued 1979 grand list on or before January 31, 1980.From the judgment of the trial court issuing the writ, the defendant has appealed.

The facts which support the trial court's judgment are unchallenged and are set out in its memorandum of decisions.SeePractice Book, 1978, § 3060B.Those facts that are relevant to an understanding of the issues on appeal reveal the following: The last revaluation of real property in the city was completed in 1965.On May 10, 1977, the city contracted with the firm of Trumble-McGuirk & Associates (hereinafter TMA, a firm with expertise in the revaluation of real property, to assist it in carrying out the revaluation of all real estate in the city for the grand list of October 1, 1979.The contract called for TMA to complete all valuations and to have the notices of increased assessments, as required by General Statutes § 12-55, ² in envelopes for mailing to the owners by November 20, 1979.All work done by TMA was subject to the direct supervision and approval of the assessor of the city, and the completed appraisals, upon approval by the assessor, were to serve as a basis for the assessments on the grand list of October 1, 1979.TMA completed its work on schedule and notices of the new assessments were mailed on or about November 20, 1979.

The new assessments revealed a significant increase in the valuations placed on residential real estate and property owners in the city immediately decried their estimated tax bills which had accompanied the notice of new assessments.The mayor of the city at this point asked the then assessor Eugene A. Murphy to review the assessments, particularly those on commercial and industrial properties.After a review of these valuations, the defendant Murphy found various values that he felt required further review and on December 7, 1979, sent a list of these commercial and industrial properties to TMA with a request that TMA immediately review their valuations so that the defendant could complete the grand list on January 31, 1980.At the time the defendant assessor gave TMA the list of commercial and industrial properties to review, he had accepted the residential property valuations and intended to complete the revalued grand list by January 31, 1980.

On or about December 8, 1979, the defendant changed his intention to file a completed revaluation list on or before January 31, 1980.The defendant's change of mind was caused by an order from the city's mayor: (1) to review TMA's assessments with respect to all properties in the city; (2) to leave incomplete the revaluation by January 31, 1980; (3) to continue to work on the revaluation for another year; and (4) to file the 1979 grand list based on the 1978 grand list.The plaintiff then instituted the present action on December 14, 1979, seeking a writ of mandamus to compel the city's assessor to implement a revalued grand list.

At trial on December 20, 1979, Murphy, at that time still the assessor for the city, testified that he had approved the residential valuations submitted by TMA and that he could complete his review of the commercial and industrial valuations so as to be able to file a complete revalued grand list if he were granted a one month extension until February 29, 1980, by the commissioner of revenue services as provided by General Statutes § 12-117.³Shortly after the trial court on December 27, 1979, adjudged that a writ of mandamus should issue, Murphy was dismissed and on January 3, 1980, Leo Iorio was hired to serve as the acting assessor of the city of Waterbury.Iorio was formally substituted as a defendant in this matter on January 8, 1980, and one day later he filed the present appeal.On February 20, 1980, this court determined that it was in the public interest that the appeal from the judgment of the Superior Court be heard prior to February 29, 1980, and granted the motion for an expedited appeal.On January 3, 1980, the commissioner of revenue services had granted the city an extension of time to February 29, 1980, to file a grand list.The appeal was heard on February 27, 1980.

I

It is settled law in this jurisdiction that a writ of mandamus may issue only when three conditions exist: (1) The law imposes a duty the performance of which is mandatory and not discretionary on the party against whom the writ is sought; (2)the party applying for the writ has a clear legal right to have the duty performed; (3) there is no other adequate remedy.Light v. Board of Education, 170 Conn. 35, 37-38, 364 A.2d 229;Milford Education Ass'n v. Board of Education, 167 Conn. 513, 518, 356 A.2d 109;Chatfield Co. v. Reeves, 87 Conn. 63, 64, 86 A. 750;State v. New Haven & Northhampton Co., 45 Conn. 331, 343.The defendant argues that in the present case each of the three necessary conditions is absent.We disagree.

A

The contention that "the provisions of § 12-62 are not mandatory but discretionary" was made by a previous Waterbury assessor in State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 450, 190 A.2d 591, 593.This court noted that the statute contains the words "shall ... view" and "shall revalue" and held that as far as these two operations were concerned the statute prescribed mandatory, ministerial acts that the assessor was obliged to carry out.Id., 450-51, 190 A.2d 591.

The distinction between ministerial and discretionary acts and the reasons why a writ of mandamus would be issued in the present context have long ago been delineated by this court in State ex rel. Foote v. Bartholomew, 103 Conn. 607, 615, 132 A. 30." '(W)hile ... one exercising discretion or authority, may be compelled to act and to proceed to the performance of his duty, he cannot be controlled in his judgment or compelled to exercise his discretion in a particular manner by means of this writ (of mandamus).* * * In other words, officers whose duty it is to value and assess property may be compelled by mandamus to proceed in the discharge of their duties and make an assessment, but the court would not undertake to give directions as to the valuation that ought to be placed upon the property to be assessed.' "(citation omitted.)Id., 615, 132 A. 34.More recently we elaborated: "(M)andamus will lie even if the exercise of the duty involves discretion, so long as existence of the duty is ministerial, and provided that the order issued does no more than require the duty to be performed, leaving the manner of its performance to the good-faith discretion of the official charged."(Emphasis added.)State ex rel. Golembeske v. White, 168 Conn. 278, 284, 362 A.2d 1354, 1358;seeState v. Erickson, 104 Conn. 542, 545-46, 133 A. 683.

B

The defendant seeks to avoid the effect of State ex rel. Eastern Color Printing Co. v. Jenks, supra, by arguing that §§ 12-62and12-55 compel the assessor only to commence a revaluation and that completion would constitute a discretionary act.This contention is also in effect a claim that the plaintiff does not have a clear legal right to have the revaluation completed on or before the extended date of February 29, 1980.The short answer to the defendant here is that the full determination of this court in Jenks was that "the failure of the defendant to make and complete another revaluation by February 1, 1960, constituted a disregard of the mandate of the statute."(Emphasis added.)Id., 150 Conn. 447, 190 A.2d 592.Any other or a contrary determination by us would make the statutory requirement meaningless by permitting an assessor an unlimited period in which to file a revalued list.Section 12-55, which contains its own equally mandatory language (see footnote 2) only serves to reinforce the requirement in § 12-62 that revaluation be made and completed within the statutorily prescribed time.

It should be emphasized again that a direction to the defendant to comply with § 12-62 does not impose any restraints on the defendant's choice of the most appropriate manner of complying with the statute.So long as the existence of the duty is ministerial and provided that the order issued only requires that the duty be performed and leaves the manner of its performance to the good-faith discretion of the official charged, then mandamus will lie.State ex rel. Golembeske v. White, supra.The defendant, by attempting to have us deem the exercise of the duty discretionary, would have us term its existence discretionary as well.This we cannot do.

C

The defendant also contends that mandamus should not lie in the present case because the plaintiff had other adequate remedies available to him.The defendant again overlooks the import of the Jenks decision in the present case.In Jenks, the last time real property in the city of Waterbury was due for revaluation, this court found mandamus to be the appropriate remedy and stated that: " '(A)ny other relief,...