Barnes v. Hall

55 Vt. 420 | Vt. | 1883

The opinion of the court was delivered by

Rowell, J.

“ It is well settled that the law gives no remedy for the collection of taxes other than those provided by statute.” —Dewet, J., in Crapo v. Stetson, 8 Met. 393. “ The legislature must decide upon the agencies by means of which collection of taxes shall be made.” — Cooley Taxation, 34. “ It is a familiar idea that the assessment and the enforcement of a tax is purely a' statutory proceeding, and is peculiarly in invitum, and is to be prosecuted with scrupulous regard to the provisions of the statute. A tax assessed is capable of being enforced only in the mode prescribed by the statute.” — Barrett, J., in Sumner v. Pinney, 31 Vt. 719. “The power of an officer making a lax sale is purely statutory.” — Elbert, C. J., in Gomer v. Chaffee, Supreme Court of Colorado,15 Reporter, 393. “ At common law, distress was in the nature of a pledge merely, and could not be sold at all.”— Redfield, J., in Sherwin v. Bugbee, 16 Vt. 439.

To constitute a valid attachment of personal property, it is necessary that the attaching officer take the same into his possession. Leaving a copy in the town-clerk’s office gives the officer constructive possession, and is declared by statute to have the same force and effect as taking actual possession. Without an express statute for that purpose, the interest of the lessor in chattels in the hands of the lessee cannot be attached during the term, except perhaps by trustee process, because actual possession cannot be taken by the officer, as the lessee’s possession cannot lawfully be disturbed. Smith v. Niles, 20 Vt. 315; Brigham v. Avery, 48 Vt. 602. So in distress for the non-payment of taxes, it was held in Dodge v. Way, 18 Vt. 457, that no valid lien could be created on personal property unless the collector took actual possession thereof.

Hence it follows that unless personal property is of that character and so situated that actual possession thereof can be taken, or there is some statutory provision for distraining it without taking such possession, it cannot be distrained at all.

The statute of 1878, No. 107, provided, for the first time, that whenever a collector distrained property that might lawfully be attached on mesne process by leaving a copy in the town-clerk’s office, he might leave a copy of his warrant in such office, with his return thereon, giving a description of the property distrained, and the character and amount of the tax for the payment of which it was taken, and that he should thereby acquire the same right to hold such property as though it had been duly attached on mesne process. But this statute does not cover the case before us, as bank stock at the time in question could not be attached by leaving a copy in the town-clerk’s office, but only by leaving a copy with the clerk of the corporation. R. L. s. 3236. Said section provides that the capital stock of private corporations may be taken and sold on execution like other personal property, and how it shall be done, but it does not include tax-warrants any more than did the statute providing for taking property on “ a writ of attachment or execution ” by leaving a copy in the town-clerk’s office. Although a tax-warrant is in the nature of an execution, it is not an execution, as the terms are used in our statute or understood in common pai’lance; and although this court always has been and still is desirous of upholding and carrying into effect all laws for the assessment and collection of taxes, yet it cannot go beyond the law, and commit the error of judicial legislation.

The result is, we regard this as casus omissus, and that prior to the passage of the statute of 1882, No. 11, s. 2, expressly providing therefor, there was no mode provided by law for taking and selling bank stock on a tax-warrant; hence, defendant’s promise is nudum, factum ex quo non oritur actio.

Judgment reversed, demurrer sustained, the first, second, third, and fourth counts adjudged insufficient, and cause remanded.