Hobart v. Commissioner of Corporations and Taxation
| Decision Date | 02 April 1942 |
| Citation | 311 Mass. 341,41 N.E.2d 38 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | AARON HOBART, JUNIOR, & another v. COMMISSIONER OF CORPORATIONS AND TAXATION & others. |
December 2, 1940.
Present: FIELD, C.
J., QUA, DOLAN & RONAN, JJ.
Commissioner of Corporations and Taxation. Mandamus. Public Record, Municipal Corporations, Public records. Assessors of Taxes.
Municipal assessors of taxes are not subordinates of the commissioner of corporations and taxation in the sense that they are members of his department, nor are they agents of the commissioner they are public officers selected by their municipalities. "Opinions," given by the commissioner of corporations and taxation under G.
L. (Ter. Ed.) c 58, Section 1, as amended, to assessors and collectors of taxes "upon any question arising under any statute relating to the assessment and collection of taxes," are not directions to them but only advice on questions as to which the responsibility of decision rests with them.
Mandamus does not lie directing the commissioner of corporations and taxation, in giving "his opinion" to assessors and collectors of taxes under Section 1 of G. L. (Ter. Ed.) c. 58, as amended, "upon any question arising under any statute relating to the assessment and collection of taxes," to refrain from advising in a particular manner even if the opinion given by him is erroneous as a matter of law.
Records respecting abatements, which G. L. (Ter. Ed.) c. 59, Section 60, as appearing in St. 1941, c. 209, requires shall be kept by assessors of taxes, are, subject to the limitations there defined, public records under c. 4, Section 7, Twenty-sixth, and, so limited, are open to inspection as provided in c. 66, Section 10. By reason of St. 1941, c. 209, substituting a new Section 60 in G. L. (Ter.
Ed.) c. 59, and enacted after a report to this court of a statement of agreed facts upon which petitioners were entitled as a matter of law under the former Section 60 to a writ of mandamus permitting examination of all public records respecting abatements, this court directed that a writ issue directing the assessors to permit the petitioners to examine such records subject to the limitations specified in the new Section 60.
PETITION, filed in the Supreme Judicial Court for the county of Suffolk on May 4, 1940, for a writ of mandamus.
Hearings were by Donahue, J. W. A. Neal, for the petitioners.
E. O. Proctor, Assistant Attorney General, for the commissioner of corporations and taxation.
J. D. Smith, City Solicitor, for the respondent assessors of Quincy, submitted a brief.
This is a petition for mandamus brought in this court by citizens of the city of Quincy against the assessors of said city and particularly the assessor who is clerk of the board of assessors, and against the commissioner of corporations and taxation. The petitioners allege that they have requested the respondent assessors to allow the petitioners to examine at reasonable time the "abatement record books and the records of the votes, orders and proceedings of the board of assessors" in their possession, and that such assessors have refused to allow such examination. It is alleged that the assessors so refused by reason of the "directions commands and instructions" of the respondent commissioner. The petition alleges a similar request of the respondent assessor who is clerk of the board of assessors and refusal by him. The petition also alleges that the respondent commissioner advised the respondent assessors by letter that and that the petitioners have requested the respondent commissioner to rescind such advice, but that he has refused to do so.
The petitioners pray for a writ of mandamus directed to the respondent assessors requiring them to permit the petitioners to examine at reasonable times the records referred to, for a like writ directed to the respondent assessor who is clerk of the board, and also for a writ of mandamus directed to the respondent commissioner requiring him to cease and refrain from instructing the other respondents not to permit examination of such records. No question has been raised that there is any improper joinder of parties respondent.
The respondent commissioner demurred to the petition, assigning as a reason that "Under G.L.c. 58, Section 1, the commissioner is required to `give his opinion to assessors and collectors upon any question arising under any statute relating to the assessment and collection of taxes'; that it appears from the allegations of the petition that the commissioner's letter of April 2, 1940, was in the nature of an opinion to the assessors of Quincy `relating to the assessment and collection of taxes'; that even if said opinion is erroneous in law, the respondent cannot be ordered by a writ of mandamus to desist from the performance of his statutory duty." A statement of agreed facts signed by the other respondents and the petitioners was filed in the case.
A single justice of this court sustained the demurrer of the respondent commissioner, reported such action to this court, and also reported to this court the case against the other respondents, without decision, upon the pleadings and the statement of agreed facts.
1. The demurrer of the commissioner was sustained rightly. The respondent assessors are not subordinates of the respondent commissioner in the sense that they are members, either as subordinate officers or employees, of the department of corporations and taxation, which is under the supervision and control of the commissioner. Art. 66 of the Amendments to the Constitution of the Commonwealth. G. L. (Ter. Ed.) c. 14. The assessors are not his agents. They are public officers selected by the municipalities of the Commonwealth charged by statute with the performance of certain specified duties, and are not State officers in the ordinary sense of the term. G. L. (Ter. Ed.) c. 59. See Walker v. Cook, 129 Mass. 577, 578; Cox v. Segee, 206 Mass. 380 , 382; Duffy v. Treasurer & Receiver General, 234 Mass. 42 , 47; Opinion of the Justices, 167 Mass. 599 , 600. However, in G. L. (Ter. Ed.) c. 58, there are several sections (Sections 1-8, as amended) under the subheading "Supervision of Local Taxation" by which certain duties with respect to local taxation are imposed upon the commissioner. But in the performance of their statutory duties the assessors act under the direction of the commissioner only so far as the power of direction is conferred upon him by statute. Several sections of G. L. (Ter. Ed.) c. 58, amended in some particulars, require the commissioner to furnish information to the assessors. Sections 1, 2, 3. Section 3, as amended, provides that the commissioner shall furnish information "relating to the assessment, valuation and ownership of property taxable in their town" and shall give them "any further instruction and supervision as to their duties needed to secure uniform assessment and just taxation" and to equalize the valuation of property for the purpose of taxation. Section 4 provides that in certain cases the commissioner shall "direct" the assessors to adopt certain methods of keeping their records and to make use of certain information, and Section 5 provides that the commissioner shall give "instructions" for preparing notice and bringing in lists, and "prescribe forms therefor." Section 1, however, provides that the commissioner "may visit any town, inspect the work of its assessors and give them such information and require of them such action as will tend to produce uniformity throughout the commonwealth in valuation and assessments," and provides further that he "shall prepare and issue printed instructions to assessors as a guide to them in carrying out said purpose," and "may furnish to local assessors blank forms for use in valuing such property," and that he "shall give his opinion to assessors and collectors upon any question arising under any statute relating to the assessment and collection of taxes, and may obtain the opinion of the attorney general upon such question."
The matter with respect to which the respondent commissioner, according to the allegations of the petition, advised the respondent assessors by letter, does not fall within any of the provisions above set forth authorizing the commissioner to require or direct action by the assessors, or even to instruct or supervise with respect to such action. At most, the duty of the commissioner with respect to matters referred to in this letter was to "give his opinion" to assessors "upon any question arising under any statute relating to the assessment and collection of taxes." Section 1. We assume in favor of the petitioners, without deciding, that the advice given by the commissioner to the assessors by letter was given in pursuance of his duty to "give his opinion." In any event the advice so given cannot be regarded as in the nature of a direction to the assessors or anything more than an expression of his opinion upon a matter with respect to which the responsibility for action was on the assessors.
Whether or not there is a statutory duty upon the commissioner enforceable by mandamus, as a ministerial duty, to "give his opinion" to the...
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