Cassube v. Maynard

293 A.2d 594, 112 N.H. 229, 1972 N.H. LEXIS 183

• Court: Supreme Court of New Hampshire
• Decided: June 30, 1972
• Docket: 6346
• Status: Published

Opinions

Lampron, J.

Petition for writ of certiorari. Defendant Olla, Inc. was the owner of the Ellis Hotel located on the main street of Keene. Plaintiffs’ petition alleges that they are the assessors of the city of Keene, two of whom are individual taxpayers. The individual defendants are members of the State Tax Commission. It is alleged, and it seems not to be disputed, that the true value of the Ellis Hotel property for the tax year beginning April 1, 1968, was set by the assessors at $67,768.00 for the land and $58,036.00 for the buildings and that the same value was established for the 1969 tax year. An application for abatement was denied by the assessors in January 1969 following which Olla applied to the State Tax Commission. On April 15, 1970, the commission notified the assessors that it had abated part of the taxes on the Ellis Hotel. The commission had determined the true value of the land at $67,750.00 plus a 10% margin, or $74,550.00, but had reduced the building to $2,600.00 plus a 10% margin, or $2,850.00.

The plaintiffs allege that the determination that the true value of the building was $2,850.00 was arrived at by a misapplication of the law, that it could not be reasonably made on the evidence, is so low as to amount to no valuation at all, and that the determination was “arbitrary, capricious, unreasonable, an abuse of discretion, or the result of gross mistake.”

Defendants’ motion to dismiss was granted and plaintiffs’ exception was transferred by Dunfey, J.

The main issue presented is whether where the State Tax Commission has granted an abatement to an individual taxpayer upon an appeal to it under RSA 76:16-a the city through its board of assessors or any individual taxpayer is entitled to have the matter judicially reviewed.

The plaintiffs as taxpayers contend that if the abatement is allowed to stand they will be required to pay more than their fair share of the tax burden in violation of their constitutional right. Edes v. Boardman, 58 N.H. 580, 587 (1879); Morrison v. Manchester, 58 N.H. 538, 549 (1879); see Blogie v. State Tax Comm’n, 111 N.H. 246, 279 A.2d 603 (1971).

This court has held that the taxpayer seeking an abatement has a constitutional right to be heard at some time upon the assessment made against him. Hampton v. Marvin, 105 N.H. 34, 36, 193 A.2d 441, 444 (1963). The legislature has provided a court appeal to such a taxpayer if he is aggrieved by the action or refusal to act of the taxing authorities. RSA 76:17. However, the legislature “for reasons considered .. . sufficient” has not given to city officials or to other taxpayers the right to appeal or to contest by other means the administrative decision of the tax commission granting an abatement to a particular taxpayer. Manchester v. Furnald, 71 N.H. 153, 156, 51 A. 657, 658 (1901); see Davis, Administrative Law Text s. 28.01 (3d. ed. 1972); Davis, Administrative Law Treatise s. 28.07 (Supp. 1970).

Such remedies are not necessary to protect the constitutional right relied on by the plaintiffs. They can assure their right to have their fellow taxpayers pay their fair and proportionate share of the tax burden by seeking a release from so much of the tax assessed to them as is in excess of their share. Morrison v. Manchester, 58 N.H. 538, 550 (1879); Blogie v. State Tax Comm’n, 111 N.H. 246, 248, 279 A. 2d 603, 604 (1971). The fact that the procedure to enforce this remedy contains certain time limitations (RSA 76:16, 16-a, 17) does not render it nugatory.

We hold that the present case is controlled by Blogie v. State Tax Commission, supra, and that the trial court properly granted defendants’ motion to dismiss.

Exception overruled.

Grimes and Duncan, JJ., dissented; the others concurred.