Knight v. Thomas , 93 Me. 494 ( 1900 )

Haskell, J.

Petition for mandamus by several taxpayers of a town to compel the assessors to assess certain real estate in the town at a just and fair valuation, that had previously been undervalued, and to assess certain other real estate that had theretofore been omitted from taxation.

I. It is objected that the writ cannot issue at the instance of the petitioners, who are individuals.

It is settled law, in this state, that the writ can only issue at the instance of public officers, to subserve a public right. Sanger v. County Commissioners, 25 Maine, 291; Mitchell v. Boardman, 79 Maine, 469; Weeks v. Smith, 81 Maine, 538. But, as stated in the last named case, an individual may move for the writ “ when his personal rights have been invaded beyond those rights that he enjoys as a part of the public and that are common to every one.”

The public consists of the entire community, persons who pay taxes and persons who do not. Their interest is the raising of revenue by taxation or otherwise to provide for the expenses of government, public works, public institutions and public chai’ges. The individual taxpayer’s interest is in common with ¿11 these, but he has another interest peculiar to himself, that taxes shall be assessed equally, so that his burden shall not be greater than equality of taxation shall impose. His personal interest, therefore, by the omitting of property from taxation in his own town would, be invaded thereby beyond that enjoyed in common with the public, and he may well be allowed to move for the writ in protection of it.

II. It is objected that the writ will not lie to command assessors, who intend to assess a certain parcel of land, to assess the same at its just and fair value. Their oath requires them to do that, and mandamus could not require more. It may require them to assess, but the assessment is matter of judgment, and it must be their own judgment, honestly given of course. Any other assessment would be corrupt, and the remedy for that must be elsewhere. Otherwise, mandamus would simply work an appeal from the appraisal of property made by the assessors, which is not at all the proper function of the writ. To have all the property assessed is a private right; to have the assessment according to law is a public right. The assessors are public officers, sworn to a faithful discharge of their duty. The individual has a right to have them act. The public has the right to their official action, honestly performed under their oath, and with this the individual must be content, unless the legislature shall provide a remedy. The legislature has already provided such remedy as it thought wise by R. S., e. 77, § 6, where jurisdiction is conferred upon this court to hear and determine all complaints relating to any unauthorized votes to raise money by taxation, or to exempt property therefrom.

III. As to the land not assessed, the petitioner might have had the writ if the court below, in its discretion, had seen fit to award it, for the writ is a prerogative to be withheld or granted in the exercise of discretion. It is not a writ of right. Morsell v. First Natl. Bank of Washington, 91 U. S. 357. Nor can it now be issued to any effective purpose. The assessment must have long since been made. To issue it would be an idle ceremony. Mitchell v. Boardman, 79 Maine, 471. The petitioner is not aggrieved by the ruling below.

Exceptions overruled. Petition dismissed.