State ex rel. Foote v. Bartholomew

• Decision Date: 23 December 1925
• Citation: 103 Conn. 607,132 A. 30
• Court: Connecticut Supreme Court
• Parties: STATE EX REL. FOOTE v. BARTHOLOMEW ET AL., BOARD OF RELIEF.

132 A. 30

103 Conn. 607

STATE EX REL. FOOTE v. BARTHOLOMEW ET AL., BOARD OF RELIEF.

Supreme Court of Errors of Connecticut.

December 23, 1925

Appeal from Superior Court, New Haven County; Earnest C. Simpson Judge.

Proceeding in mandamus by the State of Connecticut on the relation of William R. Foote, against Clifford G. Bartholomew and others as the Board of Relief of the Town of Branford, to compel them to include certain property in the assessment list of the town. On being brought to the superior court, motion to quash the alternative writ was granted, and petitioner appeals. Error, and cause remanded.

George E. Beers and Albert M. Herrmann, both of New Haven, for appellant.

Ernest L. Averill and Earle A. Barker, both of Branford, for appellees.

KEELER, J.

This proceeding is brought to compel the board of relief of the town of Branford to include in the assessment list of the town certain real property owned by the First Ecclesiastical Society of Branford. The application, verified by the relator Foote, alleges this ownership; that the society has been leasing this land for long terms to lessees in leases containing a provision that the lessees shall reimburse the society for all sums which it may be compelled to pay in the way of taxes; that the land has not been assessed for taxation for many years, and has been improved by the erection of numerous buildings upon parts thereof that it is not within any of the exemptions from taxation provided by statute; that about four acres of this land lies adjacent to the land of Foote, which latter land he owned on October 1, 1924, and listed for taxation according to law; and that the land of the society was not assessed in the list of that year. The application further alleges that on February 16, 1925, Foote appealed to the board of relief from the doings of the assessors in the premises, and requested it to make a proper list of the property of the society omitted by the assessors; that his request was refused, and no further action taken by the board in the premises; that power to make the list asked for is conferred upon the board by law, and particularly by chapter 207 of the Public Acts of 1923; that the failure to assess the property places a disproportionate and unfair burden upon other taxpayers of the town, including Foote; and that the respondents are the members of the board of relief of the town.

Counting upon this application, the superior court issued its alternative writ of mandamus, requiring the respondents to make a supplemental list of the omitted taxable property of the society and a valuation thereof for taxation, or to show cause to the contrary on the first Tuesday of May, 1925. Upon the return of the proceeding to court, respondents moved to quash the alternative writ, because (1) respondents were under no ministerial duty imposed by law, and had discretion in the premises; (2) the relator had no clear legal right to have a duty performed; (3) the relator had other sufficient remedy; (4) the respondents had performed their ministerial duty in passing upon relator's appeal from the assessors; (5) the court had no jurisdiction to review by mandamus the action of the board of relief in determining this appeal; (6) the relator had appealed to the board, therefore the provisions of the act of 1923 have no application; (7) it does not appear in the application that the relator had requested the respondents to take action under the provisions of the last-named act; (8) there is now pending in the superior court an appeal by the relator from the doings of the board of relief. The court granted the motion to quash upon the fourth and fifth grounds above set forth, as indicated in the memorandum of decision, and rendered judgment for the respondents. From this judgment the petitioner appeals, setting forth the claimed errors of the court in ten reasons of appeal, which are somewhat consolidated in the brief and argument, and which we will consider as there developed.

We may observe at the outset that a motion to quash is equivalent to a demurrer. Brainard v. Staub, 61 Conn. 570, 575, 24 A. 1040; State v. New York, N.H. & H. R. Co., 71 Conn. 43, 47, 40 A. 925; State ex rel. Eliott v. Lake Torpedo Boat Co., 90 Conn. 638, 645, 98 A. 580. As it does not appear in the application or the alternative writ that Foote took any appeal to the superior court from the action of the board of relief when he appealed to it from the doings of the assessors, this ground of objection to the alternative writ cannot be considered, since it is open to objection on the same ground as a speaking demurrer.

The appellant contends that the duty of a board of relief, under the act of 1923, in placing property omitted in the yearly tax list for assessment made by the assessors and putting a valuation thereon, is separate and distinct from its duty as an appellate body, passing upon the work of the assessors, is a distinct and independent power, safeguarded as is their ordinary revisory action by the provision of an appeal to the superior court, and that, when an occasion arises to make a supplemental list and valuation, the board proceeds as an independent and distinct administrative unit, to the end that taxation may be equal and equitably distributed among individuals, and no taxpayer may be injured by an excessive tax upon his own property, or by the escape of other taxpayers from just taxation. So the appellant contended it is the duty of the board to make such a supplemental list, which is mandatory, and not discretionary.

The trial court held that it was the duty of the board of relief to act upon a state of facts existing such as is contemplated by the act of 1923, and to list and value property omitted by the assessors, and that the act was mandatory and not permissive, although in describing the action to be taken the word " may" is used and not " shall." We think the court held correctly. The accepted rule in such cases is that if in a statute conferring power and authority for the benefit of the public. or of a third person, or of individuals generally, the word " may" is used, it shall be construed as equivalent to " shall," and that the statute is mandatory and not permissive or discretionary. Lyon v. Rice, 41 Conn. 245, 248; State v. Neuner, 49 Conn. 232, 233; State v. Richards, 74 Conn. 57, 60, 49 A. 858; Capobinco v. Samorak, 102 Conn. 310, 128 A. 648. The case last cited discusses the question at length, and considers the authorities.

The power given the board of relief by the act of 1923 is clearly for the benefit of the public; that is, of the persons owning property within the taxing jurisdiction. The power given is of like nature with that exercised by the assessors, but it is to be noted that the board, under the act, is not exercising appellate power or jurisdiction over any act of the assessors. It exercises a new and distinct power and jurisdiction, acting in the tax list both to place property omitted in the assessment, and to make a valuation thereof for taxation. Its action may be reviewed on appeal to the superior court. Considering the haste necessarily involved in the work of the board while performing its statutory duties in reviewing the assessment made by the assessors within the time fixed by law, the act of 1923 is decidedly expedient and remedial and of a supplemental character. It stands by itself, not depending in any way upon prior tax legislation. The relator and any other taxpayers had a legal right, as part of the general public, to have the board perform its statutory duty. The trial court so held, and correctly. And the relator had the right to invoke and set in motion all proper legal procedure to that end.

So far the views expressed were held by the trial court and set forth in its memorandum. But the court proceeds to hold that since the board of relief exercised quasi judicial and discretionary powers, and it can be compelled by mandamus to act, " to perform its duties, that is, to proceed to determine whether or not the property should be placed in the taxable list, it cannot be compelled to decide that question in any particular manner."

Now in the instant case the board of relief, acting under the act of 1923, was simply a board of assessors, and a board of assessors is an administrative body, as is conceded in respondents' brief. So, also, is a board of relief. When acting as a board of review of doings of assessors, it is still such a body. In Bugbee v. Putnam, 90 Conn. 154, 158, 96 A. 955, 957, we said:

" The assessment of property for taxation is an administrative proceeding. Ives v. Goshen, 65 Conn. 456, 459, 32 A. 932. The board of relief is an administrative board, not a judicial tribunal. In performing its duties in valuing property and in correcting and equalizing assessments, it acts largely upon the knowledge of its members as to valuations and as to the taxable property of the taxpayers."

The acts of assessors, and also of boards of relief when acting under the general law or under the act of 1923, are ministerial. This court, in American Casualty Ins. Co. v. Fyler, 60 Conn. 448, 460, 22 A. 494, 495 (25 Am.St.Rep. 337), approves the following definition of a ministerial act, quoting from Flournoy v. City of Jeffersonville, 17 Ind. 169, 79 Am.Dec. 468:

" A ministerial act is one which a person performs in a given state of facts, * * * in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done."

It is quite evident that the counsel of respondents, and the court in supporting their contention, do not give proper attention to the distinction between determining facts and applying the law to established facts.

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