George v. Town of Calais, 82-76
| Decision Date | 05 April 1977 |
| Docket Number | No. 82-76,82-76 |
| Citation | 135 Vt. 244,373 A.2d 553 |
| Parties | Philip and Shirley GEORGE v. TOWN OF CALAIS et al. |
| Court | Vermont Supreme Court |
John K. Dunleavy of Burgess & Normand, Ltd., Montpelier, for plaintiffs.
Stephen C. Walke, Jr., of Paterson, Gibson, Noble & Brownell, Montpelier, for defendants.
Before BARNEY, C. J., LARROW, BILLINGS and HILL, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.
The power to tax can destroy, and the power to exempt can generate unlikely characteristics. In this case it is argued that two storage silos should be regarded as machines, in order that they may be exempt from taxation under 32 V.S.A. § 3802(8). The listers did not accept this identification and taxed them. The trial court also found them taxable and the matter is now before us.
Also involved is an issue concerning the dismissal of the plaintiffs' prayer that the proceeding be treated as a class action. V.R.C.P. 23 is the governing rule. As can be seen by the extent of the concerns set out in its provisions, class actions are intended to be of limited and special application, not to be casually resorted to or authorized. This is because, improperly used, they can seriously compromise many due process rights of those involved. The rule had its origins in chancery and is, in effect, an enlargement of the justifications of joinder where the parties are far more numerous.
For this reason, first among the prerequisites listed is the one requiring that the proposed class be so numerous that joinder of all members is impracticable. Other requirements are that there be common questions of law or fact, that the claims or defenses of the representatives be typical of those of the class and that those representatives will fairly and adequately protect the interests of the whole class.
The satisfaction of these prerequisites is not enough. V.R.C.P. 23(b) provides:
An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members in the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
In the exercise of the broad discretion given under this rule, the lower court denied class action status. Given the facts of this case, this ruling is sustainable on any one of a number of grounds. The trial court premised its ruling on three: first, that joinder was not impracticable; second, that the requisite common question of fact is lacking, and there may be separate issues of fact with respect to the element of intention, which may vary among members of the class; and third, that a class action is not superior to other available methods for fairly adjudicating this controversy.
The pleadings indicate a class of defendants, at best, numbering no more than twenty-three, so joinder was not outside feasible limits. Furthermore, the status of the silos as fixtures is an issue....
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Salatino v. Chase
...actions are intended to be of limited and special application, not to be casually resorted to or authorized." George v. Town of Calais, 135 Vt. 244, 245, 373 A.2d 553, 554 (1977). This is particularly true of the mandatory class actions authorized by Rule 23(b)(1)(B), because class members ......
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State v. Norman Tie and Lumber Co.
...considered the question of whether a building or a similar structure constituted "machinery" or "equipment." In George v. Town of Calais, 135 Vt. 244, 373 A.2d 553 (1977), a silo used for the storage of animal feed was held not to be machinery, and in Y. D. Lumber Co. v. Refuge Cotton Oil C......
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Southern Industrial, LLC v. Maxine, LLC, No. 2008-CA-002311-MR (Ky. App. 11/25/2009)
...v. Wilkins, 822 N.E.2d 781 (Ohio 2004) (defining a silo as a "fixture" and a "structure" for purposes of taxation); George v. Town of Calais, 373 A.2d 553 (Vt. 1977) (addition of silo on landowner's farm realty deemed a "fixture" for tax purposes); Wisconsin Dept. of Revenue v. A. O. Smith ......
- J. A. S., In re, 186-75