Bixby v. Roscoe

85 Vt. 105 | Vt. | 1911

Watson, J.

This action is brought under the statute (P. S. 644) to recover by trustee process taxes assessed against the defendant in the town of Essex for the year 1909. At the close of the plaintiff’s opening evidence the defendant moved that a, verdict be directed in his favor because (1) it does not appear that the taxes sought to be recovered are legal and such as the ■defendant is bound in law to pay, nor that the plaintiff is legally qualified to collect them; (2) it does appear that said taxes are illegal, that the plaintiff is neither qualified nor authorized by law to collect the same, and (in the language of the bill of exceptions) “that the defendant’s printing establishment was ■exempt from taxation by virtue of the vote of the town of Essex.” The motion was overruled, to which an exception was taken. Thereafter evidence was introduced in defence and in rebuttal. At the close of the evidence, the defendant renewed his motion for a verdict “on the grounds and for the reasons stated.” This was overruled and an exception allowed. The plaintiff then moved for the direction of a verdict in his favor, whereupon the defendant made requests that the case be submitted to the jury. The defendant’s rquests were overruled and a verdict ordered for the plaintiff to recover the amount of the taxes in question, to which defendant excepted.

It is argued by the plaintiff that defendant, in his motion for a verdict, cannot stand upon the claim that the property taxed was exempted by vote of the town, because, as shown by the transcript of the complete record of the trial, which is made apart of the bill of exceptions and is to control, this ground is not stated in the motion. It appears from the transcript, however, that in the court below the motion was construed by counsel on both sides, and by the court in rendering its decision thereon, as covering this ground. It being subject to such construction, the consideration of this Court will be directed accordingly.

The record shows that at the annual town meeting of Essex, in March, 1896, pursuant to an article in the warning sufficient for that purpose, it was “voted to exempt from taxation for a term not exceeding five years all property exceeding in amount the sum of one thousand dollars, invested in manufacturing purposes agreeably to section 365 of the Vermont Statutes.” This action of the town was never rescinded.

It appeared from the uncontradicted evidence on the part of the defendant that he was formerly engaged in the business of conducting a general and mercantile printing plant in the town of Jericho, this State; that while thus engaged his attention was called to the said vote of the town of Essex, and, after conferring (through his agent) with the officers of that town concerning the matter of the exemption of his plant, he removed the same to Essex in the spring of 1904 in acceptance of the proposal contained in its said vote, and commenced business there in September following; that the plant was in fact exempted from taxation in that town for the first three years after the-removal; that in the quadrennial appraisal of 1906 it was noted as exempt, and although in the list of that year, by mistake, the exemption was not made, on discovering the error the tax was abated; that in 1908 defendant received notice that the exemption was disallowed, but received it too late and after the time for the hearing of persons aggrieved had passed. In 1909 the plant was taxed and some of the taxes here in question were assessed thereon.

In the course of the discussion on defendant’s motion for a verdict at the close of plaintiff’s opening case, the court ruled that the defendant’s printing plant was a manufacturing establishment within the meaning of the statute. No exception was taken to this ruling, and, as we understand it, a concession to the same effect was made by counsel for the plaintiff in the argument before us.

In overruling the motion the court held that the statute does not confer on towns the right to exempt manufacturing establishments by a vote general in terms, like that taken by Essex in 1896. But no such claim is made by the plaintiff in this Court, nor could there well be, for it was expressly held otherwise in Caverly-Gould Co. v. Springfield, 83 Vt. 396, 76 Atl. 39. The plaintiff contends, however, that the defendant did not accept the offer within a reasonable time, and consequently his property is not within the exemption. Assuming but not deciding the general rule of law to be, as claimed, that when no limitation of time is named within which the offer is to run,, the acceptance must be within a reasonable time, yet when as-here the offer is treated as open by both the town making it and by the acceptor, and is acted upon by both — by the latter in removing his manufacturing establishment to that town and there operating the same, and by the town in exempting such establishment in fact from taxation for the three successive years following the removal — a practical construction of the contract is given and acted upon by the parties, showing the acceptance to have been within the legal limitation of the time of the proposal. In such circumstances the town is not in a position to say the offer came to an end before the time of the acceptance, and the rule applies that where a person has had the benefit of the consideration for which he bargains in a unilateral contract he is held bound. Richardson v. Hardwick, 106 U. S. 252, 27 L. ed. 145, 1 Sup. Ct. 213; Wald’s Pollock on Cont. by Williston, 35, and Note 40.

^Adverting to the proposal shown by the vote, it was “to ■exempt from taxation for a term not exceeding five years, all property * * * * invested in manufacturing purposes, agreeably to section 365 of the Vermont Statutes.’ ’ We construe the offer thus made to be as broad as the statute, except as to the term of the exemption, which was limited to five years, that is, five years from “the commencement of business.” The statute does not authorize such exemption to be made from an earlier date. And since the defendant removed his plant to Essex in acceptance of the offer, he was entitled to the exemption thereof, including the real estate, such machinery, appliances and buildings as were necessary for the prosecution of the business, and all capital and personal property used in such business, for the full term of five years from the commencement of business there (see Westmore Lumber Co. v. Orne, 48 Vt. 90), and the town could not within that period withdraw the exemption to his prejudice. Caverly-Gould Co. v. Springfield, cited above; City of Middlesboro etc., v. New South Brewing & Ice Co., 108 Ky. 351, 56 S. W. 427; Home of the Friendless v. Rouse, 8 Wall. 430, 19 L. ed. 495; McGehee v. Mathis, 4 Wall. 143, 18 L. ed. 314; Memphis &. St. Louis R. R. Co., v. Loftin, 105 U. S. 259, 26 L. ed. 1042. Therefore to order a verdict for the plaintiff was error.

The result of the case, however, does not depend on this exemption alone; for the record shows real estate owned by and taxed to the defendant, not a part of his manufacturing plant, also a poll-tax against him.

The plaintiff’s evidence tended to show that the defendant’s inventory, marked exhibit F, was signed and sworn to by him, as on its face it purports to have been; that there being some irregularity as to one or more of the answers to interrogatories, "the listers requested the defendant to change the inventory in 'those respects, which he refused to do; that the inventory was accepted by the listers and the defendant’s list made up, based thereon. The defendant’s evidence tended to show that, although he filled out this inventory by way of answering the interrogatories, and signed it, and sent it to the listers, it was never sworn to by him. The inventory purports to have been ¡sworn to by the defendant before the lister whose name is signed to the jurat, and not otherwise. Whether .it was so ¡sworn to was a material question in the case, and should have been submitted to the jury. If the defendant intentionally omitted to make oath thereto, as bis testimony tends to show, the circumstances shown by the evidence were such that the listers in the performance of their duties must have had knowledge thereof, and they had no authority in law to base his list thereon. The statute is, that in such circumstances the listers •shall ascertain as best they can the amount of the taxable property of such taxpayer, appraise the same at its true value in money and double the amount so obtained, etc. P. S. 561. This is the method prescribed by law for making a recusant "taxpayer’s list (Bartlett v. Wilson, 59 Vt. 23, 8 Atl. 321), and it is essential to the validity of the list that such method be ’followed. This has been held even to the extent of the real estate ¡appearing in the quadrennial appraisal. Smith v. Stannard, 81 Vt. 319, 70 Atl. 568.

The town clerk, called as a witness by the plaintiff, was ■asked to state whether or not the warning for the annual town meeting in 1909 was posted in a public place, and if so, where, If he knew. This was objected to as incompetent. The witness answered, “ I know that they were posted in three public places. ” "No objection was made to the answer. The question was a ■proper one, and it was not rendered improper by the unresponsive answer. The bill of exceptions states that defendant ■asked to have this answer stricken out, but the transcript, made controlling, does not show that defendant so asked nor "that the court made such refusal. The witness then testified without objection that he knew the warning was posted in two ¡of those places more than twelve days and that the notice was recorded. He was then asked whether he was able to state whether it was posted between its date or between the record- — - 15th February — and twelve days before town meeting, and answered, “Well, I know it was posted in two public places between twelve and twenty days before town meeting.” A certified copy of the record of the warning was then received in evidence subject to objection that the proper foundation, had not been laid. Defendant’s attorney then moved to strike out the last answer, saying, “let him state where the posting, was, and let the jury say whether a public place or not. ” Plaintiff’s attorney said this motion came too late. The motion was then denied and no exception taken. It is unnecessary to pass upon the sufficiency of this evidence to go to the jury on the question of the warning being posted in three public-places. The warning, recorded February 15, was for a meeting, of the legad voters of the town on Tuesday, March 2, 1909,“ and the record shows that the annual meeting of such legal voters was held at the time and place specified in the warning,, and that officers were elected and business transacted pursuant, to the articles therein. We think this was prima facie evidence-that the warning was posted as required by law. Lemington, v. Blodgett, 37 Vt. 210.

The abstract of the individual list of the taxpayers was received in evidence. It is urged that it was erroneously admitted,, for if the taxpayer’s inventory is accepted by the listers as. containing a true and correct statement of his real and personal property subject to taxation, the abstract should correspond with the inventory; and if the inventory is not so accepted,, it is the duty of the listers to make up the list of such taxpayer,, under the doubling process — neither of which was done as to-the defendant. This objection is without force. The requirements of the statute respecting the abstract are the same whether the particular list be based upon an inventory or be made up under the provisions of the lav/ because of wilful failure to make a proper inventory; and it need not show the specific action of the listers in making up a particular list. Smith v. Stannard, cited above; Taylor v. Moore, 63 Vt. 60, 21 Atl. 919. The only other objections to the admission of the abstract, upon which reliance is now placed, amount to this: (1) that it bears evidence. on its face of having been altered; and (2) since the record' shows clearly that the fixed machinery of the defendant’s manufacturing plant had been once listed in one of the items of real estate, it was error for the listers to place it again in the abstract for the purpose of taxation. The abstract could not be excluded on the first ground, for the testimony of the town clerk was that no alteration had been made therein since it was lodged by the listers in the town clerk’s office. Nor on the second ground. Such machinery formed a part of the real estate to which it. was fixed and could not be taxed in any other way, were it taxable at all. If it was also included in the item of personal property for the purpose of taxation and the tax assessed thereon, as the defendant claims, this would be the assessment of a tax upon a list made up in part of property erroneously set in the list. And since the item of personal property is separable from the-item of taxable real estate, such error does not invalidate the-whole tax. P. S. 606.

Some point is made in defendant’s brief touching the action of the board of civil authority on his appeal, and their qualification to act. Yet as the certified copy of the record of the doings of the board shows the matters presented before it to pertain exclusively to the exemption of his manufacturing plant under the vote of the town, the questions raised become immaterial in view of our holding on that branch of the case.

A copy of what purported to be a record of the listers’" preliminary oaths was received in evidence. Objection thereto was made on six different grounds stated. In defendant’s brief it is said that the evidence “ was incompetent for the reasons-given, ” referring to two pages of the transcript. No particxdar point is more definitely called to our attention. Some of the grounds stated in the transcript are without force, for instance, “as immaterial.” It is the duty of an exceptor to state in his brief the precise point on which he relies as constituting reversible error; and if he does not, the Court will not examine the several grounds named in taking the exception to see whether error was committed. Davenport v. Davenport, 80 Vt. 400, 68 Atl. 40; Wilkins v. Brock, 81 Vt. 332, 70 Atl. 572. The brief is indefinite in the same way as to the exceptions relied upon to the admission in evidence of the grand list book, and the notice to the taxpayers to pay their taxes, — we pass them without consideration for the same reason.

The plaintiff, having testified that he was elected constable of Essex in the year 1909, and served as such, testified in reply to questions by defendant’s attorney that he took the oath as constable but did not subscribe it. Whereupon defendant objected to the plaintiff’s official position as constable being shown, because by the Constitution such an official must subscribe the oath of office. Yet a constable is not an officer in authority under this State, within the meaning of Chap. 2, Sec. 29, of the Constitution, but is in authority under the town by the voters of which he was elected. Consequently the plaintiff was not required to take and subscribe the oath of office prescribed by the Constitution. Rowell v. Horton, 58 Vt. 1. 3 Atl. 906; Brock v. Bruce, cited above.

Since the case goes back for a new trial because of error in directing a verdict, the defendant’s exceptions to the noncompliance with his requests to charge, and for special findings, and to the overruling of the motion in arrest of judgment, are not considered.

Judgment reversed and cause remanded.