Babcock v. Town of Granville

44 Vt. 325 | Vt. | 1872

The opinion of the court was delivered by

Wheeler, J.

Although the bill of exceptions shows that the plaintiff was a resident of the defendant town on the first day of April, 1869, it does not show that he was in any manner taxable there, if he was not taxable as the agent of Josiah Babcock. This was not, therefore, as presented, á case of excessive assessment, nor of over valuation. And the trial in the county court appears to have proceeded without objection or exception by either party, upon the theory that, if the plaintiff was not taxable as such agent, the taxation of him was illegal. Therefore, no question is here presented concerning the jurisdiction of the listers of the defendant over the plaintiff, nor concerning the conclusiveness of their proceedings if they had jurisdiction over him, on account of his residence, in the absence of any appeal by him to the selectmen, under the provisions of § 28 of chapter 83 of the General Statutes. In Stearns v. Miller et als., 25 Vt., 20, it was held that in an action against listers for wrongfully setting personal estate ' in the list, where the listers had jurisdiction and no appeal to the selectmen was taken, the proceedings of the listers were conclusive, unless they were shown by clear proof to have acted corruptly. Perhaps the samo rule would apply in an action to recover back money paid upon taxes assessed upon personal estate. But a decision of that question is not necessary to a determination of this case.

This case, therefore, stands before this court upon the right of the plaintiff to recover back money paid upon a tax which the jury have found was illegal, upon an issue about which no question was made. But the defendant insists that the plaintiff was improperly suffered to recover back this money, notwithstanding that the tax was illegal, for several reasons.

First, because it is claimed that there is no remedy for this illegal taxation, except that afforded by application to the board of civil authority under the provisions of § 66 of chapter 15 of the General Statutes. But this 'board was not constituted to try and determine the legality of taxes. It was provided to abate taxes and discharge tax-payers from them, whether legal or illegal, to the extent limited by the statute, to be governed in its actions by prudential reasons and considerations, and not by the strict rules of law. This view is not contrary to the cases of Osborne v. Danvers, 6 Pick., 98, and Salmond v. Hanover, 13 Allen, 119, cited in behalf of the defendant. Both of those cases were cases of excessive but not of wholly illegal assessment. Neither of these cases holds that resort may not be had to other remedies than abatement for illegal taxation. Many actions of assumpsit have been brought in that State to recover back money paid upon illegal taxes, and have been maintained. Bennett & Heard’s Dig., 697, Tit. Taxes, V. b. Many actions of that kind have been brought in this State, and have been maintained; others have been brought, but have failed, not because that was an improper remedy, but because in those cases the plaintiffs were not entitled to any remedy. This claim is not well founded either in principle or in authority.

The defendant claims, secondly, that the case was not properly submitted to the jury upon the question of voluntary payment of the tax by the plaintiff. The evidence tended to show that the plaintiff was reluctant about payment, and that the collector insisted upon collecting it, and that thereupon the plaintiff paid it under protest. Upon this evidence, the jury found, under the charge of the court, that the plaintiff was compelled to pay the tax in order to save his property from being taken. This was not a voluntary payment, and it was not a waiver of the right to insist upon the illegality of the tax. Henry v. Chester, 15 Vt., 460, Bennett and Heard’s Dig., Tit. Taxes, V. b., and cases there cited. Upon this head the defendant further claims that the case does not show that the collector had any warrant for the collection of the tax, and that therefore his proceedings were not compulsory upon the plaintiff. But no question appears to have been made but that the defendant received the money collected of the plaintiff. This action was brought and has proceeded upon the ground that the defendants had money unlawfully collected of the plaintiff, which in equity belonged to the plaintiff. Money paid by a tax-payer, voluntarily, upon a tax-bill without a warrant, would not be money unlawfully collected. But the fact, if such was the fact, that the collector of the defendants assumed to enforce payment of this tax without a.ny warrant, when it is found that the payment was not made voluntarily, would not show that the defendants came rightfully by the money, and would not unfavorably affect the right of «the plaintiff to recover. The defendants cannot prevail upon the second ground.

The defendants insist, thirdly, that the plaintiff cannot recover without a demand. A plaintiff is entitled to recover in this form of action where the defendant has money that belongs to the plaintiff, and wrongfully detains it from the plaintiff. In cases where a defendant has money belonging to the plaintiff, which was rightfully received, and would not be wrongfully detained without a demand and refusal of it, there a demand would be necessary before an action in this form could be. maintained. But this case stands here upon the right to recover money illegally taken, and not returned, and which therefore has always been wrongfully detained. In such cases no demand is necessary.

No error is found in the proceedings of the county court to which exception was taken. Judgment affirmed.