State ex rel. Rowe v. Krumenauer

KeewiN, J. It is established without dispute that at the time this action was commenced the tax roll had passed from the possession and control of the defendant town clerk and into the possession of the defendant town treasurer. Two crucial questions, therefore, are presented at the outset upon this appeal, namely: (1) Can the defendants be compelled by mandamus, without the aid of ch. 134, Laws of 1905, to insert upon the tax roll the sum certified to the town clerk against the town? and (2) Is said ch. 134, Laws of 1905, applicable to- the case before us ? It is fundamental that before a public officer can be compelled by mandamus to perform an act the duty must be clear and the act within his power to perform. After the tax roll has passed from the 'possession and control of the town clerk into the possession and control of the town treasurer, [189] all authority to change it has been, exhausted, except in so far as power by statute is preserved to do so. This is manifest from the several provisions of the statute respecting the making up of the tax roll by the town clerk, the execution of the bond by the town treasurer, the attachment to the tax roll as made up and completed by the town clerk of a warrant commanding the treasurer to collect the taxes spread upon the tax roll, and the delivery by the clerk of the roll, with the warrant annexed, to the treasurer on or before the second Monday in December, in accordance with the provisions of our statutes. This doctrine rests upon principle and seems to be well supported by authority. Sullivan v. Peckham, 10 R. I. 525, 17 Atl. 997; People ex rel. Lorillard v. Westchester Co. 15 Barb. 607; Colonial L. Assur. Co. v. New York Co. 24 Barb. 166. In the case last cited it was held that, after the taxes had been assessed and warrants issued and delivered to the collectors, the supervisors have no further control over the assessment roll, their power being spent, and consequently mandamus directing them to strike any particular name from the roll would be nugatory. And in People ex rel. Lorillard v. Westchester Co. 15 Barb. 607, substantially the same rule is laid down. The doctrine of the above cases is applicable to the case before us and establishes that, after the tax roll has passed into the hands of the treasurer and beyond the control of the clerk, all authority on the part of the clerk to change it has been exhausted, in the absence of express legislative authority. We do not understand that counsel for respondent denies this proposition, but rests his case upon ch. 134, Laws of 1905, which he claims authorizes the insertion of the amount in question on the tax roll after it has been delivered to the defendant treasurer. Ch. 134, Laws of 1905, reads as follows: “Whenever after delivery of the tax roll to the treasurer it shall be discovered that any city, town or village clerk in making out the tax roll has made a mistake therein in enter [190] ing tibie description of any real or personal property, or the name of the owner or person to' whom assessed, or in computing or carrying out the amount of the tax, the cleric with the consent of the treasurer at any time before the treasurer is required to make his return of delinquent taxes, may correct the name of the taxpayer., the description of property or errors in computing or carrying out the tax to correspond to the entry which should have been made on the tax roll before delivery to the treasurer. If any such corrections shall produce a change in the total amount of taxes entered in the tax roll, the cleric shall make corresponding corrections in the warrant annexed to such roll. The clerk shall enter a marginal note opposite each correction, stating when made, which shall be signed by the clerk and treasurer.” The question arises whether the respondent has brought himself within the provisions of tire foregoing act. There are several expressions in the petition and proceedings, including the judgment, to the effect that a mistake occurred in the tax roll for 1906, and the judgment provides that mandamus shall issue to correct such mistakes by inserting in the tax roll the amount certified to the town clerk. But it is perfectly apparent from all the proceedings that the amount was not omitted from the tax roll by the clerk through any mistake or inadvertence, but, on the contrary, the neglect or refpsal to so insert it was the deliberate and intentional act of the clerk, occasioned by the litigation respecting the validity of the tax and tax proceedings., including the acts of the commissioners of equalization referred to in the petition and return to the writ. The obvious intention of the legislature in the passage of ch. 134, Laws, of 1905, was not to cover a case like the on© before us, but a case, as clearly indicated by the language of the act, where, after delivery of the tax roll to the treasurer, it shall be discovered that a mistake has been made in entering the description of any real or personal property, or in the name of the owner or person to whom assessed, or in computing or carry [191] ing out the amount of tax. The act further provides that when such mistake shall be discovered the clerk, “with the consent of the treasurer,” may correct the name of the taxpayer, the description or errors in'Computing or carrying out the tax, etc. Now we do not think that by any stretch--of construction this statute can be held to include the case be■fore us. In the instant case there was no mistake made in .any of the respects pointed out in the statute, namely, in ■description, name of owner, or in computing or carrying out the amount of tax. The refusal to insert the amount certified to the clerk, as before observed, was the result of litigation and contention on the part of municipal authorities and insistence that the amount certified and charged against the town of Seymour was illegal. Quite a lengthy argument is made by counsel for respondent upon the theory that ch. 134, Laws of 1905, applies to the case before us and should be so construed by this court, but no authority is cited which appears to aid us in arriving at that conclusion. The question is one simply of statutory ■construction, and we cannot think that by any rule of construction the act in question can be made to apply to the case before us. The main argument of counsel for respondent -goes to the proposition of the meaning of the words “with the consent of the treasurer,” as to whether these words are mandatory or directory; in other words, whether the treasurer is bound to consent to the correction of the mistake. But as we view it the vital question is not whether these words are mandatory or directory, but whether-the case made comes within tire provisions of the act at all. If it does, the question of whether or not the treasurer had any discretion in the matter, or whether he was bound to consent to the change, might be an interesting question and one which we do not decide. The court is of the opinion, as indicated by what has been heretofore said, that the act does not apply to the case made, and that without special legislative authority no power [192] rested with the town clerk to make the change sought to he enforced after the tax roll had passed out of his possession and control, and therefore the judgment must he reversed. By the Court. — The judgment is reversed, and the court below directed to dismiss the action.