Montgomery v. Town of Branford

• Decision Date: 10 July 1929
• Citation: 109 Conn. 388,147 A. 9
• Parties: MONTGOMERY v. TOWN OF BRANFORD.
• Court: Connecticut Supreme Court

147 A. 9

109 Conn. 388

MONTGOMERY v. TOWN OF BRANFORD.

Supreme Court of Errors of Connecticut.

July 10, 1929

Appeal from Superior Court, New Haven County; John Rufus Booth Judge.

Appeal by Phelps Montgomery from the action of the Board of Relief of the Town of Branford refusing to reduce a tax assessment against plaintiff. On demurrer to defendant's answer and motion to strike out, which was sustained, judgment for the plaintiff by stipulation was entered, and defendant appeals. No error.

Thomas R. Fitzsimmons, of New Haven, and Ernest L Averill, of Branford, for appellant.

John Eliott, of New Haven, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS JJ.

HAINES, J.

The plaintiff alleged that on October 1, 1927, the First Ecclesiastical Society of Branford owned the fee of two certain tracts of land in that town, of which the plaintiff had possession as lessee, having an interest therein for years by contract. The lease of the first tract provided that the lessee " will pay all taxes that may be assessed upon the herein leased premises," but the lease of the second tract contained no provision for the payment of the taxes. On the first tract was a dwelling house owned and occupied by the lessee, with its appurtenances, which the plaintiff included in his tax list returned to the board of assessors of Branford, but neither of the said tracts of land was included in his list.

The assessors of the town of Branford placed both tracts in the plaintiff's list for 1927 at a valuation of $7,500. Claiming that he was aggrieved by that action, the plaintiff appealed to the board of relief, but, upon hearing, that board refused to make any change in the list, whereupon the plaintiff appealed to the superior court. The defendant claimed full justification for its act in assessing this property to the plaintiff was given by section 4, chapter 435, Special Laws of 1927, approved May 24, 1927. The superior court sustained the plaintiff's demurrer to this defense. By stipulation, judgment was rendered and appeal taken to this court upon that ruling of the superior court.

The demurrer is based upon several grounds, the most important of which are that the act imposes a tax upon property which the plaintiff does not own, and is in conflict with General Statutes 1918, § § 1134 [109 Conn. 390] and 1213; that the classification made by the act is arbitrary, and not based upon a reasonable relation to the subject-matter, and is class legislation; and, further, that it impairs the obligation of the plaintiff's contract.

We consider the questions thus raised in the order stated. From the record it appears that the second of the tracts above referred to was set in the list of the plaintiff by the town authorities in 1926, and the decision of the question then raised appears in Montgomery v. Branford, 107 Conn. 697, 142 A. 574. Justification for that action was sought in a Validating Act of 1927, c. 325, § 22, which provided that the assessment lists of the town of Branford for 1926, among others, should be validated and confirmed, " notwithstanding that in said lists the land and buildings or either of them shall have been assessed against the lessees of the real estate as the record owners of said land and buildings." We held that, as General Statutes 1918, § 1134, required that all lands to be taxed shall be set in the list of the record owner of the freehold, which in this case was the First Ecclesiastical Society, the act of the assessors in putting it in the list of the plaintiff lessee was illegal and void, and that the Validating Act was also void and of no effect, for the reason that no Validating Act could give legality to an act which was wholly illegal in its inception. " Our General Assembly was without power to validate what it could not constitutionally authorize." Montgomery v. Branford, 107 Conn. 697, 707, 142 A. 574, 577.

The defendant attempts to justify a repetition of the action taken in 1926 by the provisions of section 4 of the Special Act of 1927. The first three sections of this act confirmed in the First Ecclesiastical Society the title of all lands in the town which the society had acquired between the years 1675 and 1730, subject only to leases which had been given by the Society; authorized the Society to sell and convey the lands under certain conditions, and invest the proceeds at its discretion, and use the income for religious, charitable, and benevolent purposes. Section 4 then provides as follows: " Whenever any or all of said lands shall have been leased by said society and the income received therefrom used for religious, charitable and benevolent purposes, and such leases shall contain a provision for the payment of taxes by the lessees thereof, such lands and all improvements thereon shall be assessed against the lessees and sub-lessees in possession as the record owners of such property during the continuance of such leases." The statute law of this state provides that " any interest in real estate listed for taxation shall be set by the assessors in the list of the party in whose name the title to such interest stands on the land records of the town in which such real estate is situated." General Statutes 1918, § 1134.

Where a tenant is in possession of lands for life or for a term of years, by gift or devise, the land may be assessed against him, unless otherwise specially provided, but, where the lands are held, not by gift or devise, but by contract, this may not be done. General Statutes 1918, § 1213.

The defendant claims that these implied prohibitions contained in our statute law are...