Inhabitants of Levant v. County Commissioners , 1877 Me. LEXIS 79 ( 1877 )

Virgin, J.

By the provisions of B. S., c. 11, §§ 3 and 4, this court “has the general superintendence of all inferior courts for the prevention and correction of errors and abuses, where the law does not expressly provide.any remedy; and it may issue writs of error, certiorari, mandamus, prohibition, quo warranto, and all writs and processes necessary for the furtherance of justice or the execution of the laws.” The law not having “expressly provided any remedy” for correcting the errors of the board of county commissioners in their adjudications relating to the abatement of taxes, parties aggrieved by their decisions in matters of law, may, under the general authority contained in the above provisions, seek redress in this court.

A writ of certiorari is, in some respects, similar to a writ of error, and in others, dissimilar. The former, unlike the latter, is not a writ of right and it lies where the proceedings sought to be revised, like those now under consideration, are not according to the course of the common law. B. S., c. 102, § 13.

Generally a writ of certiorari is grantable only at the sound discretion of the court, when it appears that otherwise some injustice would be done. Rand v. Tobie, 32 Maine, 450. If the tribunal whose record is sought to be quashed had jurisdiction and the error assigned mere matter of form and substantial justice was done, a denial of the writ is no violation of the party’s essential rights. West Bath v. Co. Com. 36 Maine, 74. Furbush v. Cunningham, 56 Maine, 184. If, however, the tribunal had no jurisdiction in the premises, the court, on petition of a proper party, (Bath B. & T. Co. v. Magoun, 8 Maine, 292) will not refuse the writ, the wrong and injury in such cases consisting in the assumption and exercise of an authority not conferred by law. Bangor v. Co. Com. 30 Maine, 270. Goodwin v. Co. Com. 60 Maine, 328, 330. State v. Madison, 63 Maine, 546, 550. Fairfield v. Co. Com. 66 Maine, 385. Winslow v. Co. Com. 37 Maine, 561, so far as it is inconsistent with the last proposition, is not sound law.

The statute leaves the practice in matters of this kind as “heretofore established, and subject to such further regulations as may from time to time be made by the court.” B. S., c. 102, § 13. An examination of the reported cases in this state shows that the course of procedure has not been so uniform in some respects, as is desirable; and we have found much hesitation and uncertainty in the proceedings at nisi prius. It has been the invariable practice, however, to hear the whole case upon the petition; and from this fact, the judgment on the petition granting the writ, has in some instances been erroneously deemed by the parties, ipso facto, a quashing of the record. State v. Madison, 63 Maine, 546. All the authorities concur in excluding all evidence extrinsic to the record when it is before the court on the writ. But it is otherwise in the hearing on the petition for the writ. As the petition for a writ to quash the record, in cases within the jurisdiction of the inferior tribunal, is addressed to the discretion of the court, in the hearing on the petition the court is not limited by the record with its infirmities in matters of form ; but will enlighten its discretion by inquiring into so much of the proceedings under revision as will enable it to deal with the substantial justice of the case. And to this end we consider the proper procedure and the better practice to be, in general terms, as follows :

The petitioner should have a direct interest in the proceedings sought to be quashed. The petition should set out, among other things, such of the proceedings as the petitioner desires to have revised, bearing in mind that the writ deals only with errors in law, and not with the evidence unless some question of law is raised in relation thereto. Notice must be served upon the tribunal to which the writ if granted will be addressed. Such tribunal is the only real party respondent; although other parties may appear to maintain or object to the proceedings and be subject to costs. R. S., c. 102, § 14.

The respondent tribunal should file an answer under oath, setting out therein (when not annexed to the petition) a copy of the record. If the original record be defective, it may be amended by the tribunal in accordance with the facts, at any regular session. Dresden v. Co. Com. 62 Maine, 365. Lapan v. Co. Com. 65 Maine, 160. If it do not contain a full detailed statement of the facts (not evidence) proved, and the rulings thereon so far as the points complained of in the petition are concerned, so as to enable this court to determine the questions of law raised, such omissions should be supplied in the answer. When completed and signed and sworn to by the members of the tribunal whose proceedings they are, the answer, being in the nature of a return, is conclusive in all matters of fact within its jurisdiction. If the tribunal does not appear and file their answer so that the case may be decided upon its merits ; or willfully refuse to make a full statement of facts and rulings; this court having full power to correct “abuses” as well as “errors,” may require such statement to be certified together with the record R. S., c. 77, § 3. Mendon v. Co. Com., 2 Allen, 463.

Whenever the case was within the jurisdiction of an inferior tribunal, it is not competent for the petitioner to contradict the record or return; but when extrinsic evidence is introduced by the respondents, tending to show that substantial justice does not require the proceedings to be quashed, then the petitioner may introduce like evidence in rebuttal. Such is the well established practice in Massachusetts. Farmington Riv. W. P. Co. v. Co. Com. 112 Mass. 206. Great Barrington v. Co. Com. 112 Mass. 218. Tewksbury v. Co. Com. 117 Mass. 563. W. & N. R. R. Co. v. R. R. Com,. 118 Mass. 561.

The petition sets out two alleged errors, the second of which is that the application to the assessors for abatement was not in writing.

The statute does not in terms require either the application to the assessors (c. 6, § 68) or the one to the commissioners (§ 69) to be in writing. The latter board, however, is a quasi court of record, having the same clerk in the respective counties as the judicial courts, keeps a record of its official proceedings, renders judgments, and issues legal processes, etc. R. S., c. 78, §§ 7 et seq. The application to this board, making a part of its record, must necessarily be in writing. It is altogether different with the board of assessors. It is not required to keep any record of its doings in relation to abatement. And while a written application to the assessors might be convenient, and may properly be required by the assessors, especially where large amounts or numerous items of property are involved, still, in ordinary cases, we perceive no controlling reason why, when not expressly requested by the assessors, the application to them need be in writing. In this case the assessors did not request it; and notwithstanding the inexcusable conflict as to what item of property abatement was claimed, the commissioners found and adjudged that the applicant seasonably and “duly made application to the assessors to abate the tax on said eight hundred dollars, ancl that they refused so to do.”

The other alleged error is, substantially: That the applicant (Hall) did not “answer all proper inquiries in writing, as to the nature and situation of his property; ” and that he absolutely refused to answer some of them.

The record recites that the commissioners found and adjudged that the petitioner (Hall) answered “certain proper inquiries,” etc. This is obviously insufficient. It is not enough that he answered “certain proper inquiries” unless they comprised “all” such as were put to him by the assessors. R. S., c. 6, § 67.

Instead of amending their record (as they would have a right to do, at any regular session, if the facts warranted it) or supplying the facts upon this point, together with their ruling thereon, by way of an answer or return to this petition, as hereinbefore mentioned, it is attempted to show them by the testimony of two of the commissioners. Commissioner Thomas testified: “We considered this controversy” (whether Hall refused to answer certain specified questions, etc) “and the statements and feeling that existed between them,” (Hall and the assessors) “and we came to the conclusion from the slight acquaintance that we had with the law and law decisions, that he had answered all proper, questions; and we so decided.” Commissioner Ferguson testified : “Mr. Barker moved that the case be dismissed for want of jurisdiction, for the reason that the questions were not properly, answered; and we retired and overruled that, and decided that we had jurisdiction, and that he had answered the questions sufficiently to entitle him to an appeal.” The third commissioner did not testify.

The assessors testified in substance, that they read to TIall certain specific questions in writing, and took his answers in writing as he gave them. Hall testified that some of the questions as testified to by the assessors and his answers thereto, were correct, and others not; but denied that he refused to answer any question.

While this conflicting testimony may account for the peculiar language of the record — “that he answered certain proper inquiries,” etc., — the supplement to the record furnished by the foregoing testimony of two of the commissioners is quite as defective as the record itself, in not stating the facts upon which the commissioners based their ruling. This is matter which goes to the jurisdiction of the commissioners. From the conflicting testimony of Hall and the assessors, it was the duty of the commissioners to find the real facts; what specific questions, if any were put, and the respective answers by Hall thereto. This court can only pass upon the law of the case; and the law cannot be tested until the facts to which it was applied by the commissioners, are before us. If the assessors did make the inquiries in writing and receive the answers as they have testified, the ruling of the commissioners was clearly erroneous, and they had no jurisdiction. Lambard v. Co. Com. 53 Maine, 505.

Our conclusion, therefore, is that the report must be discharged and the case stand for further hearing at nisi prius, to the end that the commissioners may make a return under oath, stating therein what inquiries in writing, if any, were put by the assessors to Hall at the time he handed in his list, together with Hall’s answers thereto and the ruling of the commissioners upon such inquiries and answers. Until such return is made no question of law upon this jurisdictional branch of the case is properly before us, as we cannot know upon what facts our judgment is to be founded. Tewksbury v. Co. Com. 117 Mass. 563, 565-6.

Case to stand for hearing.

Appleton, C. J., Dickerson, Danforth, Peters and Libbey, JJ., concurred.