City of Manchester v. Furnald

• Court: New Hampshire Supreme Court
• Writing for the Court: PARSONS, J.
• Citation: City of Manchester v. Furnald, 51 A. 657, 71 N.H. 153 (N.H. 1901)
• Decision Date: 03 December 1901
• Parties: CITY OF MANCHESTER et al. v. FURNALD et al.

51 A. 657

71 N.H. 153

CITY OF MANCHESTER et al.

v. FURNALD et al.

Supreme Court of New Hampshire. Hillsboro.

Dec. 3, 1901.

Exceptions from Hillsboro county.

Bill in equity by the city of Manchester and a taxpayer against David O. Furnald and others, assessors of the city. Demurrer to the bill sustained, and ease transferred on plaintiffs' exception. Exception overruled.

The bill alleges that the defendants, as assessors of the city, in April, 1900, in appraising the taxable estate in the city, neglected and refused to value the property of the Amoskeag Manufacturing Company, and that of four other corporations named in the bill, liable to taxation therein, at its true and full value as alleged in the bill, but appraised the same at a less sum. The prayer of the bill is that the defendants be ordered and commanded to assess upon the property and estates of said corporations such part of the taxes as by a true and full valuation thereof would be assessed thereon; that a writ of mandamus be issued, directed to the defendants, for the purpose aforesaid, and for such other relief as may be just. The defendants' demurrer was sustained, subject to the plaintiffs' exception.

George A. Wagner and Arthur O. Fuller, for plaintiffs.

Edwin F. Jones and Harry T. Lord, for certain defendants.

David Cross and Frank S. Streeter, for Amoskeag Mfg. Co.

PARSONS, J. The plaintiffs' grievance is an alleged error in the action of the defendants, assessors, in valuing for taxation certain corporate property in the city. It is correctly claimed by the plaintiffs and asserted by the defendants that the acts complained of were judicial. Hagar v. Reclamation Dist, 111 U. S. 701, 710, 4 Sup. Ct. 663, 28 L. Ed. 569; Edes v. Boardman, 58 N. H. 580. There is no constitutional right to a jury trial upon questions of value arising upon tax assessments, because the practice was otherwise at the adoption of the constitution. Boody v. Watson, 64 N. H. 162, 166, 9 Atl. 794; Cocheco Mfg. Co. v. Town of Strafford, 51 N. H. 455, 458. Hence the determination of this question is constitutionally placed by the legislature with a tribunal without a jury. Section 1, c. 58, Pub. St., made the defendants a constitutional tribunal to determine for taxation purposes the value of the property in question. Whether the jurisdiction of the superior court upon this question should be original, appellate, or superintending, is a legislative question. Boody v. Watson, 64 N. H. 162, 176, 9 Atl. 794. Upon a petition in abatement brought in conformity to the statute, which is in substance an appeal, the court has appellate jurisdiction, under which all questions both of law and fact are open for revision. Edes v. Boardman, 58 N. H. 580.

For reasons considered by the legislature sufficient, and which are not material here, though many of great weight are readily perceived, no appeal has been given to the public upon the question of individual assessments. The court therefore has no appellate jurisdiction under which to entertain the petition. As the court has neither original nor appellate jurisdiction of the question of assessment values as raised in this case, the jurisdiction, if it exists, must be found in the power of "general superintendence." Pub. St. c. 204, § 2. The form of the process required for the exercise of this power is not material. "The question of form of action is not considered when it is of no practical consequence, and time spent upon it would be wasted. * * * In this case such technicalities are useless, and no time is to be wasted upon the inconvenient peculiarities of writs that cannot suppress or derange the best inventible procedure. * * * A judgment of a lower court that is reversible here on a common-law writ may be reversed here upon petition. * * * A statement of the error as the ground of complaint and cause of action is required in the petition by the essential rules of common-law pleading for the ascertainment of the precise point in controversy, and the production of distinct issues of law and fact. On a sufficient petition, the question is whether there is an error correctible by the superintending power, and not whether * * * it is correctible on writ of error, writ of false judgment certiorari, mandamus, audita querela, or prohibition." Boody v. Watson, 64 N. H. 162, 173, 9 Atl. 794, 803. The petition alleges the value of the corporate property at a certain sum, and then alleges the appraisal of it at a less sum by the assessors. The fundamental question upon the demurrer, therefore, is whether the error so alleged is correctible under the superintending power. "What errors are correctible in the superintending jurisdiction is determined by common-law principles and statutory provisions applicable in each case. In some of the authorities confusion arises from loose and ambiguous definitions. A decision of a question of fact is described as an exercise of discretion; an exercise of judgment is spoken of when the meaning is that the question on which the judgment is exercised is not one of law; and the superintending power is said to be restricted to ministerial, as distinguished from judicial, error, when the distinction intended is the difference between a question of law and a question of fact The common law does not give a universal right of appeal from inferior courts for the mere purpose of granting a new trial of issues of fact. The superintending power is generally limited to such matters of law and fact as must be tried and decided in order to correct errors of law. When the legislature intend a court's decision of questions of fact shall be revisable by another tribunal on a new trial of the whole case, whether there is error of law or not, an appeal is ordinarily provided." Boody v. Watson, supra, and authorities cited on page 187, 64 N. H., and page 813, 9 Atl. "When no appeal is provided from the decision of the constituted...