Town of Barnet v. New England Power Co., 95-71

Decision Date01 February 1972
Docket NumberNo. 95-71,95-71
Citation291 A.2d 396,130 Vt. 268
PartiesTOWN OF BARNET v. NEW ENGLAND POWER COMPANY.
CourtVermont Supreme Court

Arthur L. Graves, St. Johnsbury, for plaintiff.

Paterson, Gibson, Noble & Brownell, Montpelier, for defendant.

Before SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is a petition for a writ of certiorari brought by the Town of Barnet to review the action of the Caledonia County Board of Tax Appraisers respecting the appraised value of its property in said Town for the taxable year 1969.

The listers appraised the property at $5,015,778.00. On appeal to the board of civil authority this value remained unchanged. An appeal was taken to the Commissioner of Taxes and acting under the provisions of 32 V.S.A. § 4441 referred to the Caledonia County Board of Tax Appraisers for its appraisal and report. The board reduced the appraised value of the New England Power Company property to $3,443,652.00. The county appraiser's report is dated May 24, 1971. Notice was given to the parties June 1, 1971.

The New England Power Company, in its answer to the petition for a writ of certiorari and by way of an affirmative defense, moved for a dismissal of the petition on the primary ground that the regular method of review was open to the petitioner, by an appeal, under 3 V.S.A. § 815 which became effective July 1, 1969.

Until April 6, 1970, the procedure for taking tax appeals from the board of civl authority to the Comissioner of Taxes was set forth in 32 V.S.A. §§ 4441, 4443-4451. These sections were repealed April 6, 1970. During the time these sections were in force there appeared no regular means of review of tax appraisals, and as a consequence the accepted method of reveiw was by a petition for a writ of certiorari. This proposition was well stated in Petition of Town of Mendon, 127 Vt. 502, 503, 253 A.2d 139, 140 (1969), when the Court stated:

"The writ of certiorari issues only when there is no other adequate remedy at law and no other means of review available. Since the county board of appraisers exercise a judicial function the correctness of their actions will be inquired into where substantial questions of law affecting the merits of a case are in issue."

See also In re Heath, 128 Vt. 519, 266 A.2d 812 (1970); Villeneuve v. Commissioner

of Taxes, 128 Vt. 356, 264 A.2d 774 (1970); Petition of Mallary, 127 Vt. 412, 25- A.2d 837 (1969).

On April 6, 1970, 32 V.S.A. §§ 4461-4468 became effective incorporating Chapter 25 of Titles 3, §§ 801-816 and thereby provides a regular means of appeal to this Court from the Commissioner of Taxes.

32 V.S.A. § 4466 provides in part:

"Unless expressly waived by all parties to the appeal, the provisions of chapter 25 of Title 3 shall govern all proceedings before the board except where inconsistent with this subchapter."

Section 4466, supra, clearly incorporated 3 V.S.A. §§ 801-816 which and previously become effective on July 1, 1969.

3 V.S.A. § 815 provides in part:

"A person who has exhausted all administrative rememdies available within the agency and who is aggrieved by a final decision in any contested case may appeal that decision under and in accordance with the provisions of sections 2381 through 2390 of Title 12."

Chapter 102, Title 12, ss2381-2390 relate to appellate procedure generally.

Thus under the Administrative Procedure Act as means of appeal to this Court was provided for in this case effective as of April 6, 1970.

The Vermont Supreme Court has long denied petitions for writ of certiorari when a regular means of appeal exists. A recent denial of a petition for such a writ occurred in Petition of LaFreneire, 126 Vt. 204, 206, 227 A.2d 301 (1967), where the petitioner sought to test the legality of the election of a representative to the assembly. The petition was denied for the failure of the petitioner to resort to the statutory procedures provided for such challenges. The court in LaFreniere, supra, 126 Vt. at 206, 227 A.2d at 302, concluded by saying:

"Having failed to resort to the statutory procedures, the extraordinary remedies of mandamus, prohibition or certiorari are not available to her."

A writ of certiorari issues only when there is no other adequate remedy at law and no other means of review is available. Petition of Town of Essex, 125 Vt. 170, 171, 212 A.2d 623 (1965). See Burton v. Selectmen, Town of Springfield, 124 Vt. 502, 208 A.2d 318 (1965); In re Taconic Racing & Breeding Ass'ns, Inc., 125 Vt. 76, 209 A.2d 492 (1965).

The appeal to the Commissioner of Taxes was taken June 15, 1970. 3 V.S.A.ss 801-816 went into effect on July 1, 1969. 32 V.S.A. §§ 4461-4468, became effective April 6, 1970. The legislative Act No. 253, Acts of 1969, Adjourned Session of Legislature, (32 V.S.A. §§ 4461-4468) does not indicate an intent that it shall not be applied to pending appeals.

Even though this litigation was set in motion by the listers of the town of...

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6 cases
  • Town of Cambridge v. Bassett, 117-81
    • United States
    • Vermont Supreme Court
    • November 2, 1982
    ...statute. It is from this order that the Town now appeals. 32 V.S.A. § 4466; 3 V.S.A. § 815(a); see Town of Barnet v. New England Power Co., 130 Vt. 268, 269-70, 291 A.2d 396, 397 (1972). The Town argues that its income guidelines are in harmony with the statutory scheme, and are well within......
  • Bookstaver v. Town of Westminster, 33-72
    • United States
    • Vermont Supreme Court
    • February 6, 1973
    ...a proceeding of that nature will be regarded as an appeal and not a petition for a writ of certiorari. See Town of Barnet v. New England Power Co., 130 Vt. 268, 291 A.2d 396 (1972). And if the appeal is to the court, as here, the procedural law governing appeals to this court applies as in ......
  • State v. Lynaugh, 86-208
    • United States
    • Vermont Supreme Court
    • May 8, 1987
    ...treat it as a denial of the issuance of a writ of extraordinary relief, which is its substance. Cf. Town of Barnet v. New England Power Co., 130 Vt. 268, 271, 291 A.2d 396, 398 (1972); In re W.H., 144 Vt. 595, 600-01, 481 A.2d 22, 26 Aside from questioning the proper form of the proceedings......
  • Smith, In re
    • United States
    • Vermont Supreme Court
    • December 27, 1972
    ...we will treat the matter as before us on a petition for extraordinary relief under Rule 21, V.R.A.P. See Barnet v. New England Power Co., 130 Vt. 268, 271, 291 A.2d 396. Chapter II, § 19 of the Vermont Constitution reserves to the Senate of this state the 'powers to decide on the election a......
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