State ex rel. Foote v. Bartholomew

• Decision Date: 18 July 1928
• Citation: 142 A. 800,108 Conn. 246
• Court: Connecticut Supreme Court
• Parties: STATE EX REL. FOOTE v. BARTHOLOMEW ET AL. STATE v. ERICKSON ET AL.

142 A. 800

108 Conn. 246

STATE EX REL. FOOTE v. BARTHOLOMEW ET AL.

STATE v. ERICKSON ET AL.

Supreme Court of Errors of Connecticut.

July 18, 1928

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Separate applications for writs of mandamus by the State, on the relation of William R. Foote, against Clifford G. Bartholomew and others, and by the State against E. Victor Erickson and others, brought to the superior court of New Haven county. Demurrers to defendants' returns were sustained by the court (Wolfe, Judge), and judgments rendered for plaintiffs and defendants appeal. Error and cause remanded as to the first action, and no error as to the last action.

Ernest L. Averill, of Branford, and Thomas R. FitzSimmons, of New Haven, for appellants.

George E. Beers and William L. Beers, both of New Haven, for appellees.

Argued before MALTBIE, HAINES, HINMAN, BANKS, and AVERY, JJ.

MALTBIE, J.

Each of these actions has been twice before the court. The decisions in State ex rel. Foote v. Bartholomew will be found reported in 103 Conn. 607, 132 A. 30, and 106 Conn. 698, 138 A. 787; those in State v. Erickson in 104 Conn. 542, 133 A. 683, and 106 Conn. 698, 138 A. 787. Both actions concern the duty of the tax officials of the town of Branford to list for taxation certain real property in that town owned by the First Ecclesiastical Society. In the former action the plaintiff seeks a mandamus to compel the board of relief under the provisions of chapter 207 of the Public Acts of 1923, to place the land on the tax list of 1924 as property omitted by the assessors, and in the latter the plaintiff seeks a mandamus to compel the assessors to list and value the same property in the tax list of 1925, in accordance with certain statutory provisions. Both actions having been remanded by this court to the superior court for further proceedings, the respondents filed in each a return divided into numerous counts; these returns raising in many respects the same issues. In each the plaintiff demurred to the several counts of the return, and the trial court sustained the demurrer. The respondents declined to plead over, and, from judgments entered for the plaintiffs, have appealed to this court.

In the third count of the return in the Foote action, it is alleged that the question of the taxation of the property against the First Ecclesiastical Society was before the board of relief upon an appeal from the doings of the assessors, and that the board of relief decided that, under the statutes and law of Connecticut, the property was exempt from taxation as against the society. While, as we shall show, the decision of the board was an erroneous one, a conclusion that the property was exempt from taxation is not one which, in view of the applicable statutory provisions and previous decisions of this court, is free from difficulty, and the board, composed of laymen, might fairly and honestly reach it. That being so the matter would not be one where mandamus might properly issue. Even a mistake in law, unless it amounts to a plain disregard of the rules established by statute or the decisions of this court for the guidance of a public official, will not justify the courts in interfering by mandamus with the exercise of a fair and honest judgment by him in a matter the duty of deciding which is imposed upon him by law. State v. Erickson, 104 Conn. 542, 545, 133 A. 683; State ex rel. Metropolitan Life Ins. Co. v. Upson, 79 Conn. 154, 163, 64 A. 2; Ness v. Fisher, 223 U.S. 683, 691, 32 S.Ct. 356, 56 L.Ed. 610. Under the count of the return now in question, facts might be proven which would show that the court might not issue the mandamus in this case and the demurrer to it should have been overruled.

Turning to the other counts of the return in the Foote action, we find that the first is withdrawn. The second, fifth, sixth, seventh, and eighth counts set out that the property was included in the assessment list of that town; that in 1866 the Ecclesiastical Society leased the land for the term of 99 years, the lease providing that the lessee should pay the taxes assessed upon it; that the property should be assessed if at all against the lessees; that it was so assessed in the list of 1924 at a valuation in proportion to that placed upon other property in the town; that neither the state, the town, nor its taxpayers have suffered any damage by reason of the failure to list the property against the society; that, by reason of the fact that the property has for many years been assessed against the lessees, and many tax liens have been filed and now exist based upon those assessments, hardship would result to the society and the lessees if the society is forced to pay the tax and collect from the various lessees; and that the method of taxation which has been pursued is an equitable and fair one. In Montgomery v. Branford, 107 Conn. 697, 142 A. 574, recently decided by this court, we expressly held that the town had no right to assess a portion of this property against a lessee who held it under a sublease executed in 1903, and therefore having about 64 years to run, and that the provision in the original lease for 99 years that lessees should pay the taxes assessed on the land did not alter this result. So far as appears, none of the lessees against whom the property is alleged to have been assessed hold such a freehold interest in it that it or any portion of it could be taxed against them under our statutes. Certainly the fact that, by an illegal assessment against those not properly bound to pay the taxes on it, the treasury of the town will receive as large an amount as it would if the land were properly assessed against the party legally bound to pay them, is no defense to the action; nor can any hardship to the parties which will be caused in the effort to adjust their rights under former illegal assessments justify like assessments in the present and future; nor can a method of taxation in violation of the plain mandates of the law applicable in this case be deemed fair and equitable. These counts, neither separately nor together, alleged any defense to the action.

In the fourth count of the return in the Foote action, the respondents allege that the relator himself took the appeal to the board of relief referred to in the third count and mentioned above, and from the denial of that appeal has appealed to the superior court, where the matter is still pending; that he is prosecuting the action at his own expense; and that the state is not the real party in interest. But in State v. Erickson, 104 Conn. 542, 548, 133 A. 683, we held that the right of appeal to the board of relief given to individuals under the statute did not debar such a proceeding as this. As we pointed out when this action was before us on another occasion, the right in question is a public right, and as such one properly to be enforced in a proceeding by the state's attorney. State ex rel. Foote v. Bartholomew, 103 Conn. 607, 618, 132 A. 30. But it is no defense that a private individual interested in the matter as a taxpayer of the town has been permitted to bear the burden of the action. Bridgeport v. Equitable Title & Mortgage Co., 106 Conn. 542, 550, 138 A. 452. In the sixth count the claim is advanced that, as the property was placed in the tax lists in the names of the lessees, it was not " omitted" therefrom within the provisions of the statute under which the action is brought; but any property is " omitted" when it is not listed against the person legally bound to pay the tax thereon, even though it be illegally listed against some other person. A tenth count, added by amendment, seeks to take advantage of a provision of a validating act passed by the Legislature in 1927, which attempts to validate the assessments made against the lessees (Public Acts of 1927, c. 325, § 22); but in the Montgomery Case we held this act to be unconstitutional.

The only remaining count in the return alleges that the property in question was acquired by the society subsequent to the enactment of the so-called statute of 1702 (Stat. p. 66, Rev. 1702), which provided that all lands, tenements, hereditaments, and other estates, given for the maintenance of the ministry of the gospel and for certain other charitable uses, should remain devoted to such uses and be " exempted out of the general lists of estates and free from the payment of rates" ; and that the land was deeded to the society for the purpose of the maintenance of the ministry of the gospel, and all funds derived from it have been used for that purpose or for benevolent or charitable purposes. In so far as the consideration of the present demurrer is concerned, it would be sufficient to point out that it is not stated when the property was acquired, and this might have occurred after the repeal of the tax exemption contained in the statute of 1702, which occurred in 1821. Osborne v. Humphrey, 7 Conn. 335, 340. But, as the case must be remanded for further proceedings, this claim requires further consideration.

The contention of the respondent that the provision as to tax exemption in the statute was contractual in its nature, and that, when an exemption had attached to land by reason of its having been acquired while the statute was in force, the Legislature might not thereafter subject the land to taxation, finds support in some of our earlier decisions, Atwater v. Woodbridge, 6 Conn. 223, 16 Am.Dec. 46; Osborne v. Humphrey, 7 Conn. 335; Parker v. Redfield, 10 Conn. 490; Landon v. Litchfield, 11 Conn. 251; Seymour v. Hartford, 21 Conn. 481; although in Landon v. Litchfield, only four judges sat on the case and of those one delivered a vigorous dissent, and in Seymour v. Hartford, the majority opinion...