Appeal of City of Barre

365 A.2d 519 (1976)

Appeal of CITY OF BARRE (Town of Orange, Petitioner).

No. 115-76.

Supreme Court of Vermont.

October 5, 1976.

*520 Garfield H. Miller of Black & Plante, White River Junction, for petitioner.

John F. Nichols, Barre, for respondent.

Before BARNEY, C. J., and SMITH, DALEY, LARROW and BILLINGS, JJ.

PER CURIAM.

City of Barre, owner of a reservoir property in the Town of Orange, appealed its 1971 tax valuation to the Orange board of civil authority, and then to the commissioner of taxes under 32 V.S.A. § 4461. The board of appraisers appointed by him, after hearing, substantially reduced the valuation in question, and Town of Orange filed a petition for extraordinary relief in the Washington Superior Court. That court, over objections to its jurisdiction, dismissed the petition on its merits, finding that the board had substantially complied with all statutory and constitutional requirements, and that the provisions of 32 V.S.A. § 4468 did not apply to the property involved.

Admittedly, all the issues raised by the Town's petition could have been raised by direct appeal to this court. 3 V.S.A. § 815(a); Town of Barnet v. Central Vermont Public Service Corp., 131 Vt. 578, 580, 313 A.2d 392 (1973). That being so, extraordinary relief in the nature of certiorari [abolished, as such, by V.R.C.P. 81(b)], is not available. Town of Barnet v. North East Power Co., 130 Vt. 268, 291 A.2d 396 (1972). In re: Taconic R. & B. Ass'n, 125 Vt. 76, 209 A.2d 492 (1965).

Nor can the petition to superior court be justified under V.R.C.P. 74(a). That rule provides for an appeal to superior court by "any party entitled thereto by law" in a contested case. The proceedings before the tax board are a contested case. Town of Barnet v. North East Power Co., supra. They are appealable to this Court under the Administrative Procedure Act, 3 V.S.A. §§ 801-816. But the legislative scheme, viewed as a whole, clearly demarcates alternative methods of appeal from a board of civil authority, with de novo proceedings in each instance. One route is to the superior court, the other to the board of appraisers appointed by the commissioner. 32 V.S.A. § 4461. The review of the board's action by the superior court, here sought, is not one to which a party is "entitled by law," because no statute provides for it, and the clear intendment of § 4461 is that the avenues of appeal be separate and distinct. Cf. Town of Barnet v. Central Vermont Public Service Corp., supra, 131 Vt. at 580, 313 A.2d 392.

V.R.C.P. 75 is similarly inapplicable. It provides review procedure "if such review is otherwise available by law." The reasoning applicable to Rule 74 applies here also; availability and entitlement are synonymous. Moreover, as the Reporter's Notes indicate, Rule 75 is a substitute procedure for certiorari, or for use where a particular statute provides for superior court review. No such particular statute here exists, and, with a direct appeal to this Court, a remedy in the nature of certiorari is not available, as above indicated.

The general statutory scheme of alternative appeal routes seems clear, and we *521 must follow it. Absent constitutional requirements, a method of appellate review may be selected, or withheld, by legislative action. State v. Muzzy, 124 Vt. 222, 202 A.2d 267 (1964); In re Appeal of Rhodes, 131 Vt. 308, 305 A.2d 591 (1973). The method here prescribed does not contemplate the "horizontal appeal" here attempted.

Since the trial court dismissed the petition on the merits, we must reverse. Jurisdiction was lacking. In the unique posture of this case, the result leaves the holding of the board of appraisers undisturbed and unappealed from. We emphasize that substantive claims of error before that board are not reached or decided.

The order of the Washington Superior Court dismissing the action on the merits is vacated. The petition of Town of Orange in Docket No. C-100-73 WnM is dismissed for lack of jurisdiction. Each party shall bear its own costs in each court.