S. S. Kresge Co. v. Bouchard
| Decision Date | 28 June 1973 |
| Docket Number | No. 1607-A,1607-A |
| Citation | 111 R.I. 685,306 A.2d 179 |
| Parties | S. S. KRESGE COMPANY v. Arthur E. BOUCHARD, Assessor of Taxes of the City of Woonsocket et al. ppeal. |
| Court | Rhode Island Supreme Court |
This case is before us on certification from the Superior Court of a question of doubt and importance. General Laws 1956 (1969 Reenactment) § 9-24-27. The question certified results from a complaint brought by the plaintiff, the owner of certain real estate located in the city of Woonsocket, in which the city assessor of that municipality and the state of Rhode Island are named as the defendants.
In its amended complaint plaintiff alleges in substance that the city assessor overassessed the valuation of its property in Woonsocket and apportioned a correspondingly excessive and illegal tax thereon; that such illegal valuation and tax violated the equal protection clause of art. XIV, sec. 1 of amendments to the Federal Constitution; that the city assessor also violated §§ 42-44-25 and 42-44-26 by failure to provide a uniform statewide assessment; that the assessor was an agent of the state and that it was the duty of the state, as principal, by and through its agent, to assess a valuation and apportion a tax on plaintiff's real estate in accordance with the provisions of the equal protection clause of art. XIV, sec. 1 of amendments to the Federal Constitution, art. I, sec. 2 of the state constitution, and G.L.1956 (1970 Reenactment) § 44-5-12. It is plaintiff's contention that the acts and omissions of the assessor in assessing an excessive and illegal valuation on plaintiff's real estate, and in apportioning a correspondingly excessive and illegal tax thereon constituted a violation of the duty imposed by these constitutional and statutory provisions; that this breach of duty constitutes a tort by the state as principal; and that, under the provisions of P.L.1970, ch. 181, now G.L.1956 (1969 Reenactment) § 9-31-1, it has an actionable claim for tort against the state. 1
The state filed a motion to dismiss in the Superior Court on the ground that plaintiff's complaint failed to state a claim upon which relief could be granted. Before any action was taken on this motion, the Attorney General, who represented the state, being of the opinion that a question of law had arisen which was of such doubt and importance and so affected the merits of the controversy that it ought to be determined by this court before further proceedings, filed a motion in the Superior Court for certification of the following question in accordance with the provisions of § 9-24-27. 2
"Does the action comprehended by the plaintiff's complaint, as amended, state a claim against the defendant, State of Rhode Island and Providence Plantations, upon which relief can be granted to the plaintiff under the provisions of the General Laws, 1956, (1969 Reenactment, as amended), Title 9, Chapter 31?"
On November 11, 1971, an order of certification was entered and the Superior Court stayed all proceedings against the state until the question certified was heard and determined.
The facts in this case are simple and the issue raised by the certified question is very narrow. This case involves a claim by plaintiff that its real estate had been illegally assessed and taxed. Instead of availing itself of the remedy prescribed in § 44-5-26, by filing a petition for relief in the Superior Court, plaintiff brought this action under § 9-31-1 alleging that the allegations in its complaint, if proved, would constitute proof of a violation by the city assessor, as an agent of the state, of a duty owed to plaintiff, by virtue of which violation damage has accrued to plaintiff, that this would fall within the contemplation of the term 'tort' as used in § 9-31-1, and that it would be a tort for which the state, as principal, would be liable to plaintiff. 3
In brief, plaintiff argues that when the Legislature waived the sovereign immunity of the state and in express terms provided that the state shall be liable 'in all actions of tort,' (emphasis added) it evidenced a legislative intent that § 9-31-1 included all torts, regardless of the nature of the same and that it intended to subject the state to the same liability to refund taxes unlawfully exacted to which it had previously subjected its municipalities. Further, plaintiff makes reference to the Federal Tort Claims Act, 28 U.S.C.A. § 2674 (1965) and points out that the Federal Act specifically excludes any claim arising with respect to the assessment or collection of any tax. 28 U.S.C.A. § 2680 (1965). From this, plaintiff argues that the absence of comparable exclusions in ch. 31 of title 9, together with the express provision therein that the state shall be liable 'in all actions of tort' signifies a legislative intent that the Legislature, in enacting § 9-31-1 after our decision in Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896 (1970), contemplated all torts. 4
We answer the question certified to us in the negative. It is not necessary here to pass upon the question of whether the city assessor is an agent of the state. For the purposes of this case we shall assume that he is. This leaves open only the question of whether in enacting P.L.1970, ch. 181 (now §§ 9-31-1 through 9-31-7) the Legislature contemplated the kind of relief plaintiff is seeking in this action. We do not believe that it did, and this is so notwithstanding the absence of any language expressly excluding claims arising out of the alleged illegal assessment or collection of any tax.
The relief which the Legislature provided for in § 44-5-26 is the exclusive remedy available for relief from an alleged illegal assessment of taxes. Murray v. Rockaway Boulevard Wrecking & Lumber Co., 108 R.I. 607, 277 A.2d 922 (1971). We feel certain that if the Legislature intended to furnish the taxpayer with another remedy by means of § 9-31-1, it would have said so in view of the existence of the remedy already provided in § 44-5-26.
We hold, therefore, that the action comprehended in the plaintiff's amended complaint does not state a claim against the state of Rhode Island upon which relief can be granted under the provisions of § 9-31-1.
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