9 A. 794 | N.H. | 1886
Lead Opinion
By express statute the shoe factory of the Pillsbury Brothers, located in Northwood, was taxable in that town in 1884. Gen. Laws, cc. 23, 54. Under s. 10, of c. 53, it had been exempted by a vote of the town for the term of ten years, and that term had expired. July 31, 1885, it was decided in this case that the exemption law did not authorize the second vote of the town continuing the exemption for another term of ten years: that the second vote was void, and no defence to this suit; that the omission of the factory in the assessment of 1884 in pursuance of the illegal vote, was error, and a violation of the public right of taxation; and that the plaintiffs were entitled to judgment for a correction of the error. Boody v. Watson,
"All government of right originates from the people, is founded in consent. . . . When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others. . . . All power residing originally in and being derived from the people, all the magistrates and officers of government are their substitutes and agents. . . . Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property. He is therefore bound to contribute his share in the expense of such protection." Bill of Rights, Arts. 1, 3, 8, 12. "The people inhabiting the territory formerly called the Province of New Hampshire do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent *165
body politic, or state, by the name of The State of New Hampshire. The supreme legislative power within this state shall be vested in the senate and house of representatives." Const., Arts. 1, 2. In the exercise of authority given by the social contract thus made as the origin and organic law of the state (State v. U.S. C. Express Co.,
In determining what property was taxable and what was exempt, the defendants acted judicially; and they are not liable, in an action for damages, for errors in their decision. Hayes v. Hanson,
The defendants' immunity "does not depend at all on the grade of the office, but exclusively upon the nature of the duty." Cooley Torts 381. "It is not necessary that a magistrate or board should act formally as a court, or that they should be usually so denominated or considered. If they are bound to notify and hear parties, and can only decide after weighing and considering such evidence and arguments as the parties choose to lay before them, their action is judicial." Sanborn v. Fellows,
The validity of the town's vote exempting this factory for a second term of ten years was a judicial question depending on the legal construction of s. 10 of c. 53; and the defendants' construction was erroneous. The unauthorized vote did not empower them to release the factory from the share of public expense allotted to it by the legislature. Notwithstanding their unauthorized and voidable exemption of it, and their transfer of its statutory share to the plaintiffs and other tax-payers, its liability remained undischarged, as the liability of the owners of all the farms in the town would have remained if the assessment had exempted them, and put upon the factory the shares assigned by statute to the farms. The whole sum to be paid by the owners of taxable property, and the share to be paid by each, were fixed by legislative action (state and municipal) which the assessors could not annul. Many liabilities, created by statute or the common law, are ascertained on judicial inquiry, declared in judgments, and enforced by executions. A tax-payer's liability to contribute his share of the common burden, judicially ascertained by a court of special and limited jurisdiction, declared in a judgment called an assessment, and enforced by an execution called a warrant, is not created by the assessment. The Pillsburys' non-payment of their statutory share would be a compulsory payment of that share by their neighbors, and, in effect, a payment to the Pillsburys, for their private use, of their neighbors' money. The Pillsburys' payment of their own share was the plaintiffs' statutory and constitutional right. State v. U.S. C. Express Co.,
The plaintiffs' primary and substantive right is based, not on the defendants' duty of judicial assessment, or on their or our correctional duty, but on the legislative assignment to the factory of its share of a common expense incurred in the execution of the social contract. Before an action can be maintained by Northwood for the recovery of the share of the public expense due from *168
the Pillsburys as owners of the factory, the legislature have required the share and the payers of it to be judicially ascertained and recorded, either by the selectmen, or in some proceeding for the correction of the selectmen's error. But this ascertainment of the payers and the sum to be paid, like a jury's ascertainment of the payer and the sum to be paid in an action of assumpsit on a promise of contribution, is judicial procedure, and not the origin of contributory liability. An absolute obligation to pay money may be a debt before it is due, and before it is judicially assessed. Within the meaning of some statutes and some contracts taxes may not be debts either before or after assessment. Lane County v. Oregon, 7 Wall. 71; Meriwether v. Garrett,
For some errors of assessment, abatement is an appropriate relief; but it is not the only relief in all cases. The non-assessment of the factory cannot be corrected by an abatement of an excessive assessment of the plaintiffs. They were entitled to such *169 a process as would carry into effect the expressed will of the legislature that made the Pillsburys liable, as owners of the factory, for a proportional share of the common burden. The plaintiffs were entitled to this, not by the act of 1878, c. 68 (G. L., c. 57, s. 10), which authorized the defendants and their successors to correct the defendants error before the expiration of the tax year, but by the statutory division of public expense among the taxpayers of Northwood, including the Pillsburys and the plaintiffs. Under this division of burden there were obligations and rights. The Pillsburys' liability and the plaintiffs' correlative right, not being derived from the selectmen's judicial powers of assessment and correction, were not extinguished by the non-user of those powers. The question of remedy is, whether the plaintiffs have lost all judicial means of maintaining their surviving legal right and enforcing the Pillsburys' surviving legal obligation. The defendants' contention is, that if they had not been authorized to reverse their judgment, it could not have been reversed by this court, and there would have been no specific or adequate remedy for their violation of the statute and the constitution.
"In every well constituted government, the highest judicial authority must necessarily have a supervisory power over all inferior or subordinate tribunals." Strong's Case, 20 Pick. 484, 495; Att'y Gen. v. Boston,
In the absence of statutory regulation in this country, the general judicial superintendence is vested by the common law in the highest court of general common-law jurisdiction. Lawton v. Com'rs, 2 Caines 179, 182; Lynde v. Noble, 20 Johns. 80, 82; Le Roy v. Mayor, 20 Johns. 430, 438; Barrell v. Benjamin,
However much the operation of the correctional principle may have been obstructed and narrowed, in other jurisdictions, by inadequacy of remedy, the plaintiffs' violated right of assessment does not encounter an impediment of that kind. The writs named in the statute are not restricted to the uses that have been made of them. They may be modified and adapted to the wants of particular cases, "on grounds of convenience and expediency." Hayward v. Bath,
Every writ issuing out of the office of the clerk of this court is a written command given in the name of and by the state, requiring some act to be done or omitted by the person to whom it is addressed. Const., Art. 87. A writ containing an order to enforce the Pillsburys' liability by assessment is an appropriate remedy in this case, and it is not material whether the words "of mandamus" are used or omitted in the petition, judgment, and final process. Neither is it necessary to inquire whether any command that can be issued is a common-law or a statutory mandamus, or one of the "other writs" authorized but not named by the statute. The efficacy of process does not depend upon the record's giving it a technical name in a dead or living language. There is no law for turning the plaintiffs out of court on a question of terminology.
The distinction between substantive rights and their common-law remedies recovered its original importance when rights were liberated from the oppressive yoke of remedial form, which materially confounded the distinction, and inculcated false ideas of law. The question of form of action is not considered when it is of no practical consequence and time spent upon it would be wasted. Peaslee v. Dudley,
The plaintiffs' petition, setting forth the facts that entitled them to the specific remedy of an assessment of the factory, concludes with a prayer for an order upon the defendants to make the assessment, for a writ of mandamus, and for general relief. A mandamus was properly asked. Upon the narrowest precedents and the most technical definitions, it was the plaintiffs' remedy when they filed their petition, June 3, 1884, and during the subsequent months of that year, and the first three months of the next year. In March, 1885, the writ could have been issued to the defendants' successors without a prayer to that effect, and without an amendment of the petition joining them as defendants (School-District v. Carr,
When a person assessed as a tax-payer of a school-district seeks an abatement, claiming that he has been set off to another district, *174
his claim may be more properly tried in a suit brought by him in which he will be bound by the judgment, than on a petition prosecuted for his benefit by the former district. School-District v. Selectmen,
The amount in controversy is not too small for the constitutional jurisdiction of this court. On appeal we try personal common-law actions in which the legal right involved, as well as the amount of damages demanded, or the value of property claimed, is nominal; and for such suits our jurisdiction may be made original, as it is in real actions of equal insignificance. Stevens v. Chase,
The constitution does not provide that judicial duties of tax assessment shall not be imposed upon the highest judicial tribunal. On appeal, for relief by abatement, all questions of assessment can be brought hither from the municipal and state boards. G. L., c. 57, s. 12; c. 61, s. 9; Edes v. Boardman,
In one class of tax cases our jurisdiction of the questions of liability and amount has been original. From 1843 to 1878 the statute required the railroad tax to be assessed by the justices of this court. Rev. St., c. 39, s. 4; Laws of 1843, c. 34, ss. 3, 4; G. S., c. 57, ss. 1-6. The obligatory force of this law has not been an open question since the judicial character of the assessment has been fully admitted. It was decided in 1866 that the wood and lumber of a railroad company kept for immediate use on their road could not be taxed by selectmen because it was a part of the railroad property assessed by this court. "In determining the *176
value (of the capital stock), the entire railroad including the franchise, the track, land, buildings, and fixtures, and also the rolling-stock, tools, and whatever is necessary to the complete equipment of the road, should be taken into the estimate; and among them must be included, we think, the fuel and timber provided for immediate use . . . Such wood and timber must enter into, and be included in, the value of the stock, and must, therefore, in that form, be taxed as part of the railroad. Such is the settled practice of the justices of this court in assessing the railroads. . . . The wood and lumber provided by railroads for present use are already taxed as part of the railroads, and if properly so taxed it must be decisive of the question before us. Upon the point whether these materials are properly so taxed, the long and settled practice of the court might well be considered as conclusive." F. Railroad v. Prescott,
Under an Iowa statute empowering the court to direct that an act commanded by a writ of mandamus should be done by the plaintiff or some other person appointed by the court, the federal court ordered its marshal to satisfy a judgment that had been rendered against a county out of a county tax to be by him assessed and collected. Supervisors v. Rogers, 7 Wall. 175. Broader power is given by our statute in suits for the reversal of illegal exemptions, and the correction of other errors of inferior courts. All process necessary for the "general superintendence," "the furtherance of justice, and the due administration of the laws," is authorized in comprehensive terms, with no express limitation of form, substance, time, or method: no other limitations can be implied than those of common-law remedies: and in the common law of this state there is no remedial restriction that can cut off the public right of taxation asserted by the plaintiffs in this case. In Supervisors v. Rogers the power of assessment and collection could not have been exercised by the marshal without the order of *177 court. The same power can be exercised under the order of a court having "general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses" by the best process that can be invented. If the best inventible procedure were insufficient, the difficulty could not be overcome by further legislation, or by any human effort.
Whether a grant be contractual, testamentary, statutory, or common law, it conveys the rights and powers without which it would be of no effect, or the means reasonably necessary for the enjoyment of the granted property or right, the exercise of the granted power, and the accomplishment of the object of the grant. Burke v. Concord Railroad,
The Pillsburys were entitled, in the court below, to an assessment subject to the superintending correction of illegal exemptions. The exemption was illegal; and under a superintending judgment for its reversal, for an assessment of a tax on their wrongfully exempted property at its value on the first day of April, 1884, and at the late of that year, and for the collection of the tax by suit or otherwise, they will contribute that property's share of the common burden of that year, in exact compliance with the twelfth and twenty-eighth articles of the bill of rights, and every constitutional, statutory, and common-law provision relating to the subject. The assessment which the law commands to be now made by an exercise of the correctional jurisdiction of this court will follow the law's prescribed course as rigorously as if it had been correctly made in the lower court of original jurisdiction without the intervention of the superintending power. If the court below had not erred, the assessing judgment would have been rendered in strict compliance with the statute establishing the duty of that court. It will now be rendered in strict compliance with the statute of superintendence establishing the correctional duty of this court. The fact that the legislature have seen fit to lay down the duties of the two courts in different chapters does not authorize this court to refrain from that strict compliance with the law which the plaintiffs ask, and which the defendants in interest are endeavoring to prevent.
The statute dividing public expense, assigning to this factory its due share, and imposing upon the selectmen the judicial duty of assessment, and the duty of issuing process or instituting suit for collection, is all the exercise of the legislative power of taxation that is needed in this case. The selectmen's exemption of the factory was a judicial error of the same legal character as their exemption of all the property and all the persons they were bound to assess. The duty of correcting such an error, imposed by the common law upon this court when it was established in the seventeenth century, has not been annulled. If there has been a time when this court or the king's bench would have refused to correct such an error on the ground that the lower court could not correct it, the misrule would have been an instance of judicial legislation nullifying the common-law principle which provides the remedial procedure required by justice and convenience for the ascertainment and vindication of legal rights. We are not intrusted with the power of infringing substantive lights by withholding the necessary incident and appurtenant right of complete remedy: the common-law duty of inventing necessary forms of action, pleading, trial, judgment, and initial, intermediate, and final process, is as imperative now as it was during the ages in which its performance produced all the common-law procedure that is obsolete, and all *179
that is now in use: the precedent to be followed is the performance of this duty, and not a violation of it. Davis v. Bradford,
The alleged want of reversing power in this court is an alleged infirmity of a writ of mandamus. We need not inquire whether there are jurisdictions in which an exempting violation of statute is upheld by the defect of ancient process now brought to the defence of this wrong. When New Hampshire law of person, property, and equal taxation is arranged under such heads as assumpsit, mandamus, and other insufficient forms of action, the inverted classification does not subject supreme rights to the domination of servient and incompetent remedies of judicial origin. The statute provides for the correction of the error of the lower court. The present position of the defendants in interest is that the error of the nominal defendants cannot be corrected because mandamus does not convey corrective power. This is in effect a claim that the court should disobey the law because among the writs constructed by them and their predecessors there is none adapted to this case. It is, at most, an overruled objection to the introduction of a new form of action. Walker v. Walker,
An error of a lower court, not correctible where it occurred, might not be within some peculiar superintending jurisdiction derived from, or dependent upon, the corrective power of the lower court. But it is not the general rule that the superior jurisdiction is derived from, or depends upon, the inferior; or that the power of the latter to correct its errors is a test of their curability. When the superintending court, reversing a judgment of the lower; proceeds to render not such a judgment as the latter can give at the time of reversal, but such as ought to have been given, and to try the case if a new trial is necessary to ascertain what the judgment should be (Hillsborough v. Deering,
The exemption of the factory could have been reversed here March 31, 1885, not because the court had invented a writ of mandamus for the work of that day, but because the exemption was illegal, and at the common law affirmed by statute, the illegal exemption was an error of a court of inferior jurisdiction reversible in the court of correction. Why could not the exemption be reversed in the same court the next day? The only answer that has been suggested is, that it could not then be reversed by the voluntary action of the court below, and a writ of mandamus had been contrived, which would compel them to exercise their reversing power on the last day of March, but would not convey a reversing power to them the next day. The alleged inadequacy of mandamus for the business of April 1, does not exclude the use of adequate process. If the statute, which affirms the common-law power of superintendence, had named a writ of error as the only *181 writ to be used in the correction of error, the exemption of the factory could have been reversed, on such a writ, on the last day of March, 1885, or the next day, or at this term. Using that writ, the court could render the judgment of assessment that ought to have been rendered in the court below; and, instead of being restricted to the use of one writ, the corrective power is left free to use any convenient, appropriate, and adequate process that has been or can be invented. The superintending power of reversal existed in April, and there was no more difficulty in devising a method of exercising it than in drawing a reversing mandamus in the previous month. The statute is that the supreme court shall "have general superintendence of all courts of inferior jurisdiction to prevent and correct errors and abuses." G. L., c. 208, s. 1. The legislature could have added this proviso: "But no error of a court of inferior jurisdiction shall be corrected by the superintending power unless the inferior court is in existence, and can make the correction without the intervention of that power, when the supreme court, after necessary hearing, investigation, and deliberation, are ready to render a correctional judgment." This extensive repeal of common-law remedies would have deprived many common-law, statutory, and constitutional rights of needed protection. Had the legislature inserted such a proviso, questions would have arisen that need not be considered under the statute in its present form. Under such a proviso, a plea in bar of the further maintenance of an action for an exercise of the superintending power, alleging that since the commencement of the suit the court below had been abolished, or had become unable to make a voluntary correction of its error, would stand on ground that does not now exist. Under the statute as it is, such a plea in this case would give a superfluous reason for the further maintenance of the action.
When an erroneous public or corporate record, or official paper, is amended by order of this court on motion, it is not material whether the officer who committed the error has power to correct it voluntarily, or whether he is in or out of office. "The right to have the amendment made cannot depend upon the question whether the officer has again been elected." Gibson v. Bailey,
The act of 1878 neither gave nor took away the plaintiffs' constitutional and statutory light of equal taxation, or their remedy in this action. Neither in terms, nor by implication, did it introduce a ground for holding that their right was not violated by the exemption; that the exemption was not reversible in this suit; that a judgment of reversal became impossible during the pendency of the suit in which they were entitled to it; or that this court is disabled to issue process for the execution of a judgment which it has power to render. If it is an enabling act, it extends to the end of the tax year, the time in which the selectmen, of their own motion, can correct certain errors by amendment. Harwood v. N. Brookfield,
In the law requiring this factory and all other property taxable in Northwood to be assessed before the first day of July, the limitation of time is directory. Scammon v. Scammon,
Suppose that act had not been passed, or had been repealed; and suppose a case in which Northwood's share of public expense for 1884 was $5,000; the Pillsburys' factory was worth $5,000; and in the assessment, the defendants, instead of exempting the factory, exempted all polls and all property except the factory. *184
In such a case, a mere equalizing abatement would wholly exempt the Pillsburys (M. Mills v. Manchester,
It has been held that the proceedings of inferior tribunals may be impeached collaterally when the law has not provided a mode in which their proceedings can be revised. Gurnsey v. Edwards,
On grounds of public convenience, an ordinary tax assessment, based on an illegal exemption, has been held to be an exception to the rule that quashes, or treats as wholly void, a proceeding collaterally or directly impeached. Dillingham v. Snow,
"Where an erroneous order of the court below is quashed on certiorari, and the merits of the cause are left undecided, if the constitution of the court below interposes no practical difficulty, the effect of awarding the writ is limited to the erroneous order, and the cause is remitted, with instructions to proceed. And the rule requiring the whole proceeding to be quashed is applied only in cases where the court below has no power to take up the cause after the erroneous order has been vacated, and proceed to determine the merits." Hayward v. Bath,
What errors are correctible in the superintending jurisdiction is determined by common-law principles and statutory provisions, applicable in each case. In some of the authorities, confusion arises from loose and ambiguous definitions. A decision of a question of fact is described as an exercise of discretion; an exercise of judgment is spoken of when the meaning is, that the question on which the judgment is exercised is not one of law; and the superintending power is said to be restricted to ministerial as distinguished from judicial error, when the distinction intended is the difference between a question of law and a question of fact. The common law does not give a universal right of appeal from inferior courts for the mere purpose of granting a new trial of issues of fact. The superintending power is generally limited to such matters of law and fact as must be tried and decided in order to correct errors of law. When the legislature intend a court's decision of questions of fact shall be revisable by another tribunal on a new trial of the whole case whether there is error of law or not, an appeal is ordinarily provided. Richardson v. Smith,
The construction is, that the remedy of abatement on appeal shall be employed in cases to which it is applicable (G. L., c. 57, s. 12, Edes v. Boardman,
The power of the lower court to correct this error of exemption is not a common-law limit of the correctional power of this court; the legislature have not made an express exception authorizing us to abstain from correcting all errors of lower courts that cannot be corrected by the voluntary action of those courts; and there is no evidence from which a legislative intention to make all such errors irremediable can be inferred. There is a strong presumption against the existence of a remedial defect caused by a lack of administrative authority, or by any inoperative provision of law. Obligations created by statutes which prescribe no methods of remedy are enforced by the appropriate procedure of the common law. Wiley v. Yale, 1 Met. 553, 554. When courts of special jurisdiction are not charged with the duty of vindicating rights secured by laws designed to be and capable of being judicially administered, the inference is that the duty is laid upon a general jurisdiction. The abolition of the board of equalization would not exempt railroads from the shares of public expense assigned to them by Gen. Laws, c. 62, s. 1, but would leave the judicial work of their assessment in the general jurisdiction, where it was before the board was established, *188
and where the shares could be recovered in common-law actions, without previous assessment, if the statute were silent on the subject of assessment and collection. U.S. v. Lyman, 1 Mason 482; Meredith v. U.S., 13 Pet. 486, 493, 494; D. S. Bank v. U.S., 19 Wall. 227, 240; U.S. v. New Orleans,
The objection that a supplementary assessment of the factory will make the whole assessment of the town too large could be waived by the tax-payers who had that grievance, as it could be if the defendants, or their successors, had voluntarily reversed the exemption before April 1, 1885. All who were excessively taxed could obtain abatements, or waive the objection by making no complaint. Some might choose to avoid the cost which might not deter others from litigation. This suit would not be barred by the plaintiff's' election not to incur the expense of an appeal for an abatement. By contributing more than their share of the common burden, they would not waive their right to the payment of the Pillsburys' share.
A failure of justice, sometimes caused by difficulties of a practical nature, is no argument against the correction of the defendants' error. The inability of a sheriff to overcome resistance is not a legal reason for withholding a writ. The inability of a plaintiff to find property for the satisfaction of his just claim is no cause for rendering judgment against him, or refusing either to render judgment in his favor or to issue process of enforcement. By the expiration of an estate for years, or a term of office, during the pendency of a suit for its recovery, the title, whether vested in the plaintiff or in the defendant, is terminated. In the present case, the subject of litigation has not ceased to exist. The public right to the factory's share of expense was not limited in duration to the *189 year in which the defendants and their successors could voluntarily give the remedy of a supplementary assessment. If the error of exemption had not been committed, or had been repaired, the right would not have expired on the last day of March, 1885; and the continued existence of the right did not depend upon its escaping violation in the court of assessment.
The year's limitation of the time of voluntary amendment in that court might be relevant on the question of the reasonable time within which this suit could be brought. By analogy to statutes, a person's death may be presumed from his not being heard from for seven years. Smith v. Knowlton,
It is not now denied that the plaintiff's were entitled to judgment when they brought this suit, and for ten months afterwards. The legal construction of statutes is the ascertainment of the fact of legislative purpose from competent evidence. Edes v. Boardman,
It is an old doctrine, that things happening by an invincible necessity, though they be against common law or an act of parliament, shall not be prejudicial. "When statutes are made, there are some things which are exempted and fore-prized out of the provisions thereof by the law of reason, though not expressly mentioned: thus, things for necessity's sake, or to prevent a failure of justice, are excepted." Dwarris Stat. (Potter's ed.) 123. "The law itself, and the administration of it, must yield to that to which everything must bend — to necessity. The law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling them to impossibilities; and the administration of laws must adopt that general exception in the consideration of all particular cases." The Generous, 2 Dods. 322, 323; Hall v. Sullivan Railroad, 21 Monthly Law Reporter 138, 147. The general exception is a general rule of statutory construction.
"As a general rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not destroyed by the lapse of the time within which in the first place the duty ought to have been done." Lewis v. Com'rs,
When a statute extending the term of a patent light provides that the right shall cease if it becomes vested, at any one time, in a certain number of persons otherwise than by devise or succession, an involuntary assignment in bankruptcy, being an act of the law, is an implied exception. Dwarris Stat. 124. In Mattingly v. Boyd, 20 How. 128, on a process of foreign attachment, the trustee was restrained from paying his debt by an order of court. The suit abated by the plaintiffs' death after the restraining order had been in force twenty-six years. During that time, the right of action of the trustee's creditor, and the statute of limitations, were suspended, because the fund was in the control of the law. The intended exception of such a case, not expressed in the statute, was implied by the general rule of construction.
Mara v. Quin, 6 T. R. 1, was an action of debt against an executrix. In Michaelmas term, 1791, she pleaded plene administravit. The plaintiff then cited the defendant in the spiritual court to exhibit an inventory, but could not obtain an account until July, 1793. This delay prevented his entering up judgment until Michaelmas term, 1793, when he took judgment for his debt to be paid out of assets that should afterwards come to the hands of the executrix. He afterwards discovered that assets had come to her hands before judgment, and after plea. For the purpose of reaching those assets, it was held, in 1794, in scire facias on the judgment, that the judgment would then be rendered as of Michaelmas term, 1791, if justice required such an amendment. The defendant did not fail to argue that there was not a single precedent to warrant such a proceeding, and that if the judgment could be altered so as to carry it back two years, it could be altered and carried back a longer time. Lord Kenyon said, — "The forms of the court are always best used when they are made subservient to the justice of the case." An amendment, made in 1794, by which the judgment of 1793 would be called a judgment of 1791, and by which it would be rendered nunc pro tunc, would not change the time when it was rendered. The fact that it was recovered in 1793 would remain apparent on the record; no amendment could alter the fact, or impair the conclusive proof of it; and the law would not falsely pretend to deceive itself by giving the judgment a wrong date. An amendment antedating the judgment two years would be a mere technical form of recording the decision that the law gave the judgment the effect it would have had if it had been rendered in 1791. A useless appearance of falsification would be avoided by a clause inserted in the judgment when it was rendered, *192 or by amendment afterwards, declaring that the judgment was payable out of assets coming to the hands of the executrix after Michaelmas term, 1791, or expressing more accurately the effect of the judgment and providing out of whose and what property it was payable, and by what execution it should be enforced.
Springfield v. Worcester, 2 Cush. 52, 62, was an action for the support of a pauper. After verdict for the plaintiff, the case was continued for the consideration of questions of law, and before those questions were decided the statute on which the action was brought was repealed. Judgment was rendered for the plaintiff, as of the term when the verdict was rendered; this course was held to be authorized by the common law; and the result would have been the same if the facts, instead of being found by the jury, had been agreed to by the parties. The decision was approved in Whiting v. Whiting,
If the question of exemption in this case had been decided at the March adjourned term, 1885, a mandamus would have issued to the selectmen of Northwood and their successors in their official capacity. There would have been no more need of their names in the writ than of the name of the sheriff in an execution addressed to that officer. Davis v. Bradford,
Judgment for the plaintiffs.
CLARK, J., did not sit: ALLEN, SMITH, and BLODGETT, JJ., concurred.
Dissenting Opinion
The question for consideration arises upon the objection of the defendants, made after the judgment reported in
Argument has taken a wide range. Many questions have been discussed, a decision of which, in the present state of the pleadings, is not necessary. The questions whether the defendants' successors in office, or any persons other than the defendants, can be required to make the assessment, whether the court can itself assess the tax or adjudge in general terms that it shall be assessed, and various other questions incidentally presented and argued, do not properly arise. Without as well as with the prayer for "such other relief as may be just," the plaintiffs may have any relief against the defendants to which they are found entitled. It is the duty of the court to render such judgment between the parties as upon the whole record appeals to be proper, but no judgment can be rendered for or against persons who are not parties. If it has been held in other jurisdictions that final judicial process may issue against persons not parties to the proceeding and who have had no notice and no opportunity to be heard, such is not the law of this state. Brown v. Sceggell,
The plaintiffs can have no relief against the defendants except the writ of mandamus specifically prayed for. If they are not entitled to that remedy, their petition (in default of an amendment bringing in other parties) must be dismissed. The defendants, *195 being selectmen of Northwood for the year 1884, neglected to assess on the property of Pillsbury Brothers a tax which the law required them to assess. Their term of office, as well as the tax year 1884, has long since expired. The sole question before the court is, whether it can lawfully order them to do now that which they ought to have done while in office. It is not material whether a Latin, English, or other name be given to a judicial order of this character. To its lawful issue under any name, or in any form, two essential requisites must concur, namely, (1) a right in the plaintiff to have the thing in question done, and (2) power in the party against whom the order is sought to do it. If either is wanting, the application must be denied. Here both are wanting. The defendants have no power to assess the tax, and the plaintiffs have no right to its assessment.
By the constitution (Bill of Rights, Arts. 12, 28; Part II, Arts. 5, 6), and the uniform practice under it for more than a hundred years, no property can be taxed except such as is declared taxable by the legislature. Property not expressly subjected by statute to taxation is exempt. Opinion of the Justices,
Selectmen are public officers whose powers and duties are prescribed by statute. They have no authority to assess taxes or to do any official act except such as is conferred upon them by the legislature. Although they exercise some functions of a judicial nature (Edes v. Boardman,
They are required to take annually, in April, an invoice of all the polls and estate liable to he taxed in their town on the first day of that month, and upon it to assess all taxes for the year following; to make a fair record of the invoice and of the taxes assessed, and before July 1 to leave it, or a copy of it, with the town-clerk to be recorded, and kept "open to the inspection of all persons." G. L., c. 55, s. 1; c. 57, ss. 1, 3, 6. Until the act of August 17, 1878 (G. L., c. 57, s. 10), they had no authority to modify or amend the record after its delivery to the clerk. When their invoice and assessment were completed and recorded, their taxing power was exhausted. Bristol Co. v. Gridley,
It is the province of courts to vindicate legal rights and redress legal wrongs; to administer not abstract justice, or justice as they may think it to be, but justice as declared by law. Freeman v. Tranah, 12 C. B. 413, 414. They may ascertain rights under the established law, award compensation for their violation, and in some cases restrain the commission of threatened wrong and compel *197
the performance of legal duty. Beyond this they have no power to go. To create obligations, to impose duties and to confer powers, are functions, not of the law-administering but of the law making branch of the government. "Judicial power as contra-distinguished from the power of the laws has no existence. Courts are the mere instruments of the law, and can will nothing." Osborn v. U.S. Bank, 9 Wheat. 866. In proper cases they may issue their mandate to a public officer requiring him to perform his official duty. But by it no new duty is imposed or power conferred. By virtue of it the officer is charged with no obligation not previously incumbent upon him, and can take no action which he could not take without it. "No court," says Strong, J., in United States v. County of Clark,
The court cannot lawfully issue an order to any person not bound by law, independent of the order, to obey it. Power to command implies the duty of obedience. The fact that no person is bound by law to obey a particular command is conclusive evidence that the court cannot lawfully make it. The sheriff is obliged to execute a precept of the court, not by force of the court's command, but because it is by the statute (Gen. Laws, c. 216 s. 3) made his duty. If it has ever been held that an order of the court in any form or under any name can be legally made, except to enforce the performance of an obligation by law incumbent upon the party to whom it is directed, the case has not been cited. If *198 the court of king's bench possessed the power to compel individuals to do that which they were not required by law to do, or which they had no lawful power to do, no instance of its exercise has been called to our attention. The unquestioned authority of that court to keep all inferior tribunals within their jurisdiction, and to correct their errors of law, does not include the power to create such tribunals, to confer upon them authority, or to do the work which the law declares shall be done exclusively by them.
The legislature has imposed duties of a judicial nature upon a great number of public officers and official bodies, and has given them, in many cases, final and exclusive jurisdiction of the matters entrusted to their determination. So it is, for example, in the case of supervisors regulating the check-list (G. L., c. 30); the school-committee dismissing a teacher (G. L., c. 89, s. 7) or a scholar (G. L., c. 91, s. 3); county commissioners locating a school-house (G. L., c. 88, ss. 6, 7); selectmen dismissing a prudential committee (G. L., c. 87, s. 15), or ordering mill-owners to repair or build (G. L., c. 141, ss. 2, 4, 7, 8); fence-viewers (G. L., c. 142); health officers, acting under Gen. Laws, c. 111, s. 3, c. 112, ss. 2, 7, c. 113, ss. 2, 3, 5, 7; courts-martial, under Gen. Laws, c. 104, ss. 8, 13, 25, 26; railroad commissioners, in fixing tables of maximum charges under Laws of 1883, c. 101, s. 4; and of a justice of the peace, removing an incumbrance from the highway, under Gen. Laws, c. 76, s. 5. In these and other similar cases the supreme court has no authority under the statute (G. L., c. 208, s. 1), or at common law, except to keep the tribunals within their jurisdiction, and see that their proceedings are regular. It may quash their doings for want of jurisdiction or for irregularity, but cannot revise their decisions upon the merits, or do what they ought to have done. It cannot remove incumbrances from the highway, dismiss teachers, locate school-houses, divide fences, etc., etc., for the plain reason that it has no jurisdiction of the subject-matter. Regina v. Bolton, 1 Q. B. 66, 72; Rex v. Monmouthshire, 8 B. C. 137; Rex v. Glamorganshire, 1 Ld. Ray. 580; Owen v. Hurd, 2 T. R. 643; 1 Tidd's Pr. (3d Am. ed.) 398; Railway Co. v. Lythgoe, 10 C. B. 726; Beswick v. Boffey, 9 Exch. 315; Fraser v. Fothergill, 14 C. B. 298; Railway Co. v. Grace, 2 C. B. N. S. 555; Carr v. Stringer, E. B. E. 123; Clifton v. Furley, 7 H.
N. 783; Freeman v. New Haven,
The fact that this action was begun during the tax year of 1884, while the defendants were in office and had power to assess the tax and while the plaintiffs were entitled to have it assessed, is immaterial. *199
In civil suits the rights of the parties are generally determined as of the time when the action was commenced, because that is the question presented by the pleadings. The cases however are numerous in which a cause of action, good in the beginning, is lost while the suit is pending. If at any time before final judgment matter arises showing that the plaintiff is not entitled to the relief he seeks, and it is properly brought to the attention of the court, his action fails; as if, for example, he becomes an alien enemy, is outlawed, or suing as administrator his letters are revoked, or if the defendant obtains his discharge in bankruptcy. In these instances, and many others of like character, judgment goes against the plaintiff, although he set out with a good cause of action. Some matters of defence accruing after the commencement of the suit must be pleaded; others, as in this case, consist of facts judicially noticed, which need never be pleaded. In all legal proceedings courts are bound ex officio to give such judgment as appears upon the whole record to be proper without regard to the issues found or to the prayer for judgment. Kittredge v. Emerson,
The general principles of pleading prevail in petitions for mandamus, so far as the nature of the proceeding admits of their application. High Ex. Rem., ss. 448, 451, and cases cited; People v. Baker, 35 Barb. 105, 113 — S.C. 14 Abb. Pr. 19, 32; State v. Elkinton, 1 Vroom 335. Mandamus cannot issue to an officer if pending the suit he has resigned his office (Secretary v. McGarrahan, 9 Wall. 298, United States v. Boutwell, 17 Wall. 604, State v. Elkinton, supra, State v. Guthrie,
Judgment nunc pro tunc cannot be rendered; the nature of the proceeding forbids it. The only judgment which can be rendered for the plaintiffs is, that the writ issue commanding the defendants personally to assess the tax. Judgments requiring for their execution the personal action of a defendant stand on widely different grounds in this respect from those to the effective operation *200
of which no such action is necessary, and which may be performed by his administrator, or satisfied out of his estate. Judgments of the latter character may, in proper cases, be rendered after a party's death, as of a term of the court when he was living. Blaisdell v. Harris,
The plaintiffs have no right to have the assessment made. It is not the plaintiffs' constitutional right to equal taxation, but their statutory right to the assessment of the particular tax on the Pillsbury factory, which is in question. The plaintiffs assert under the statutes a specific right, which in the absence of the statutes confessedly does not exist. The inequality of taxation, if any, produced by them is immaterial except upon the question of their construction, if that is doubtful. It is also immaterial, for reasons already stated, that the right existed during the tax year of 1884. The question is upon its existence now. The Pillsburys have rights. Any view of the case which leaves them out of consideration is inadequate and deceptive. The plaintiffs' right, and the Pillsburys' liability to the assessment, are coextensive and correlative: the former cannot exist without the latter. If there is no provision of the statute requiring the assessment to be made, it is the Pillsburys' right that it shall not be made. *201
One "great end for which men entered into society was to secure their property." By the common law "that right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside are various. Distresses, executions, forfeitures, taxes, c., are all of this description, wherein every man by common consent gives up that right for the sake of Justice and the general good. By the laws of England every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license but he is liable to an action though the damage be nothing. . . . If he admits the fact, he is bound to show, by way of justification, that some positive law has empowered or excused him." Lord Camden, in Entick v. Carrington, 19 How. St. Tr. 1066. Every charge upon the subject must be imposed by clear and unambiguous language. Dwar. Stat. 646; Calladay v. Pilkington, 12 Mod. 513; Davison v. Gill, 1 East 64; Rex v. Croke, Cowp. 26; Lofft 438, 439. "The rule of law," says Wilde, C. J., in Gosling v. Veley, 12 Q. B. 407, "that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax rate or toll, except upon clear and distinct legal authority established by those who seek to impose the burden, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it." "The law of England is most careful to protect the subject from the imposition of any tax except it be founded upon and supported by clear and distinct lawful authority." Gosling v. Veley, 4 H. L. Cas. 726, 726, 727, 781. If the government seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free however clearly within the spirit of the law the case may appear to be. Partington v. Att'y-General, L. R. 4 H. L. 122. The doctrine that a person's property cannot be taken to satisfy either his debts to individuals or his obligations to the public, or for any other purpose, except in conformity with the provisions of law authorizing it to be taken, has never, it is believed, been departed from by the courts of any jurisdiction where the common law prevails. The cases are numerous in which levies of executions upon the property of a debtor have been held invalid by reason of a non-compliance with particular provisions of the statutes. Mead v. Harvey,
By Gen. Laws, cc. 237 and 238, all real estate except the homestead right is declared liable for the payment of the owner's debts. *202
But if a debtor's land happens to be so situated that a levy of an execution cannot be made upon it in the mode pointed out by the statute, his creditor cannot take it. Russell v. Dyer,
The cases in which the doctrine has been applied to the assessment and collection of taxes are much more numerous. A few of those decided in other jurisdictions are collected in Cooley on Taxation, pp. 209, 257, 258-290, 296, 326, 354, and in Cooley Const. Lim. (4th ed.) 643-649. In all, without, it is believed, an exception, it is held essential to the validity of an assessment that every material requisite of the statutes be complied with. "Taxation for public purposes is a conceded power of government, but it must be enforced strictly according to law or it becomes the most obnoxious means of confiscation." Church, C. J., in Bank v. Elmira,
The doctrine has always from the earliest period been rigorously *203
maintained by this court. The cases are cited in the margin.* If in some of them it has been misapplied, their authority for the present purpose is not weakened. Its continued maintenance is of infinitely more importance than that the plaintiffs be reimbursed whatever they may have paid beyond their just share of the public expense in Northwood. Mills v. Manchester,
In Pike v. Hanson,
In Cahoon v. Coe,
The right of every citizen that his property shall not be taken by the state under the name of a tax except in pursuance of authorizing statutes is not only affirmed by the common law, but is secured to him by the express terms of the constitution. The bill of rights (Art. 28) declares that "no subsidy, charge, tax, impost, or duty shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people or their representatives in the legislature, or authority derived from that body." Without the authority of the legislature a tax can no more be levied than it can be laid. The levy of a tax is its assessment and collection. No tax laid upon property according to its value can be levied without a valuation and assessment. A tax is established and laid upon railroads by Gen. Laws c. 62, s. 1, which provides that "Every railroad corporation in this state exempted from taxation shall pay to the state an annual tax upon the actual value of the road." etc., but if the legislature had made no provisions, express or implied, for its assessment and collection, it could not be levied. If under the constitution the duty of assessing taxes can be imposed upon the court, and if, in case a tax were laid with no express provision for its assessments, it could be presumed that the legislature intended that it should be assessed by the court, there is no room for the presumption where the legislature has particularly prescribed by what offices and in what manner it shall be assessed. In fact, the legislature has never laid or authorized a tax for the levy of which it has not made full and explicit provision. The provisions of statutes laying taxes (G. L., c. 62, ss. 1, 14, c. 65, s. 1, Laws of 1885, c. 64), or authorizing them to be laid (G. L., c. 23, ss. 2, 3, c. 38, s. 4), and specifying the property liable to taxation (G. L., c. 53), are no more imperative than those of chapters 54, 55, 56, 57, declaring when, how and by whom they shall be assessed. The whole matter of taxation rests in the control of the legislature, subject to the restraints of the constitution. It is as supreme within its province as the parliament of England. It can impose taxes and require them to be assessed and collected under whatever limitations and conditions it may deem proper. It is competent for it to declare that they shall be assessed by certain officers and by no others, within a time limited and not afterward, in a prescribed manner and not otherwise. Whenever it has proclaimed the legislative will in these particulars, the taking of a man's *206 property under the guise of a tax assessed by any other officers, at any other time or in any other manner, is not taxation but robbery, and none the less so if it be done under the sanction of the court. It is no justification that the money taken is paid into the public treasury and applied to governmental purposes, that no more is taken than his just share of the public expense, and that if not taken his neighbors would be compelled to pay more than their due share of the common burden. All general laws may sometimes work injustice. If they do, it affords the legislature a good reason for amending them, but none to anybody for violating or ignoring them. In a government by law, the administration of abstract justice contrary to law is the most mischievous of all wrongs.
The legislature has declared that the selectmen, being first sworn to the faithful and impartial discharge of their duties (G. L., c. 41, ss. 1, 2), shall, annually in April, take an invoice of all the polls and estate liable to be taxed on the first day of that month (G L., c. 55, s. 1), shall appraise all taxable property at its full and true value in money (G. L., c. 56, s. 1), and Upon the invoice so made assess the taxes for that year. G. L., c. 57, St. 1, 3. Except in cases not here material it has not authorized an assessment of taxes by any other persons, or in any other manner. If the adoption by the selectmen of an appraisal made by others under their direction, or a participation of others with them in making the appraisal, vitiates their assessment, it cannot be any the less void if both it and the appraisal are wholly made by strangers to the office. By the statutes and the constitution the right of every tax-payer that his property shall be subjected to no tax which is not assessed by the selectmen upon an appraisal made by them while in office, and under the sanction of their official oath, is as firmly secured to him as his right that no more than his proportional part of the public expense shall in any case be required of him. If for any reason his property cannot be so appraised, it cannot be taxed. The body charged by law with the power and duty of appraising the Pillsburys' shoe factory, and assessing upon it the tax of 1884, ceased to exist on the 31st day of March, 1885. No tribunal authorized to make the assessment is in existence. If justice requires that it should now be made, the remedy is with the legislature. Heine v. Com'rs, 19 Wall. 661; Barkley v. Levee Com'rs,
It is the legal right of Pillsbury Brothers that their property in Northwood be appraised and assessed for the taxes of any year by the selectmen of Northwood Who hold the office during that tax year, and while they hold it. The lapse of time which has rendered such an appraisal and assessment for the tax of 1884 impossible, has not destroyed their right, but their liability, and the plaintiffs' right to the assessment which resulted from that liability. An assessment in 1886 of their tax for 1884 by the *207
defendants, either voluntarily or under the direction of the court, would be as much a violation of their right as would be an assessment by the selectmen of 1886 of double their just proportion of the taxes for that year. It is no answer that by the unlawful assessment they are required to pay only what upon principles of equity they ought to pay, and would have been compelled to pay if the tax of 1884 had been seasonably assessed. Joyner v. School District, 3 Cush. 567, 572; Clark v. Norton,
The tax-payer's right that his neighbors shall contribute their just proportion to defray the public expense is no more sacred than that of a creditor to have his debtor's property applied in satisfaction of the debt. In neither case is the right absolute. It is qualified by the condition that it can be enforced in conformity with the provisions of the statutes. If it cannot be so enforced, the right does not exist.
Metcalf v. Gilmore,
These considerations dispose of the question before the court. The petition, no amendment being asked for, should be dismissed on both grounds, (1) because the defendants have no power to assess the tax, and (2) because the plaintiffs have no right to the assessment. They show also that the result would be the same if the petition were amended by making the present selectmen of Northwood, or the Pillsburys, defendants, although as against them no judgment can now be pronounced.
Mandamus is a discretionary writ. It is not awarded in every case where it is the appropriate remedy, and the applicant's right undoubted. High Ex. Rem., s. 9. Here the plaintiffs' pecuniary injury is trifling, — so small that the maxim de minimis non curat lex may well be applied. Mills v. Manchester,
BINGHAM, J., concurred in this opinion.
The following mandate was issued:
The State of New Hampshire. Rockingham, ss. [L. S.] To the selectmen of the town of Northwood, in said county.
Whereas the following judgment has been rendered: —
"The State of New Hampshire. "Rockingham, ss.
"In the supreme court of said state, at the law term held at Concord on the first Tuesday of December, 1886.
"Elbridge G. Boody, Irving Dow, Charles F. Cate, Lewis E. Kimball, Caleb W. Hanson, Charles A. Hill, Charles Wingate, William Knowles, John C. Hill, John R. Dow, Warren P. Swain, N. Rollins, M. P. Knowlton, Joseph S. Trickey, and J. A. Cate, all of Northwood, in said county, plaintiffs,
against
William D. Watson, Enoch Fogg, and James W. Hoyt, all of said Northwood, defendants.
"On a petition, for that said plaintiffs complain against said defendants, and say that the plaintiffs are owners of real and personal estate in said town of Northwood, and are legal voters and tax-payers there; that at the annual meeting holden within and for said town on the second Tuesday of March, 1884, said Watson, *209 Fogg, and Hoyt were duly elected and qualified as selectmen of said town for the year next ensuing; that as such selectmen they were bound by law to take an invoice of all the estate liable to be taxed in said town on the first day of April, 1884, and seasonably thereafter to assess thereon all state, county, town, and other taxes which by law they might be required to assess; that on said first day of April, John J. Pillsbury and Alpha J. Pillsbury, both of said Northwood, and doing business under the name and style of Pillsbury Brothers, were the owners of certain real and personal estate in said Northwood of the value of fifteen thousand dollars, liable to be taxed; that warrants from the treasurers of the state of New Hampshire and the county of Rockingham aforesaid were duly furnished to said selectmen, whereby they were required to assess a tax amounting to a large sum, to wit, the sum of fifteen hundred dollars; that certain taxes were also voted by said town for the year aforesaid, amounting to a large sum, to wit, the sum of two thousand dollars, all of which taxes said selectmen were by law bound to assess upon the aforesaid property of said Pillsbury Brothers: yet the said selectmen, although notified and requested to assess said taxes upon said estate, neglect and refuse so to do. And your petitioners say that they have no other remedy at law than the writ of mandamus. Wherefore they pray that the said Watson, Fogg, and Hoyt, selectmen as aforesaid, may be ordered and commanded by this court to assess the taxes aforesaid upon the estate aforesaid, and that a writ of mandamus may be issued by said Court, directed to them for the purpose aforesaid, and for such other relief as may be just.'
"The foregoing petition of the plaintiffs was filed on the third day of June, 1884, was entered at the law term of said court held at Concord on the first Tuesday of June, 1884, and was then postponed for notice returnable August 28, 1884, at which time all parties appeared; and it was ordered that the facts be found at the trial term of said Court.
[The plea and replication are fully recited.]
"At the next trial term, held on the third Tuesday of October, 1884, the parties agreed that the following are the facts:
"`The Pillsbury Brothers, named in said petition, are residents in the town of Northwood, and shoe manufacturers, and have been engaged in said business since about 1867, and during the whole time have had invested in their business, as shoe manufacturers, a capital exceeding ten thousand dollars.
"`At a legal meeting of said Northwood, holden on the 21st day of June, 1873, the following resolution was passed, in accordance with an article inserted in the warrant therefor, under Gen. Sts., c. 49, s. 9. "Resolved, That we exempt from taxation any shoe manufactory, or any other manufactory that has been or may be established in this town for the term of ten years, provided there shall *210 be invested in such manufacturing business at least ten thousand dollars, and is established prior to January first, 1875."
"`During the period of ten years fixed by said resolution the Pillsbury Brothers' establishment and capital invested therein were not taxed by said town.
"`On Sept. 23, 1882, at a legal meeting of said town, the following vote was passed, in accordance with an article inserted in the warrant therefor, under Gen. Laws, c. 53, s. 10, that "the town will . . . exempt from taxation any shoe manufacturing establishment and the capital used in operating the same for the term of ten years, which has been or may be established in said town, or any other manufacturing establishment that has been or may be established, provided there shall be invested in any such manufacturing business at least ten thousand dollars, and may be established prior to January 1, 1884."
"`It was under this last vote that the exemption of the Pillsbury Brothers' establishment and capital invested therein was claimed April 1, 1884. When the vote of June 21, 1873, and that of Sept. 23, 1882, were passed, there was in said town no shoe manufactory except that of the Pillsbury Brothers, and no other was then contemplated.
"`There being some question as to the sufficiency of said vote of Sept. 23, 1882, the town, at a legally holden meeting, on July 24, 1884, under an article in the warrant therefor, passed the following vote: "Voted to exempt from taxation for the term of ten years the shoe manufacturing establishment of Pillsbury Brothers in this town and the capital used in operating the same; said manufacturing establishment and the capital used in operating the same exceed in value the sum of five thousand dollars." At the time of the passage of the vote of Sept. 23, 1882, the capital invested by the Pillsbury Brothers was much larger than that invested at the time of the passage of the vote of June 21, 1873.
"`Defendants proved that after the passage of the vote of Sept. 23, 1882, and relying upon it, the Pillsbury Brothers reorganized their business, and expended several thousand dollars that they otherwise would not; and that they continued their business in said town, relying upon said vote of 1882.'
"This cause came on to be heard on the foregoing agreed facts, and was argued by counsel, and thereupon all and singular the premises being seen and by the court now here fully understood, and mature deliberation being thereupon had, it appears to this court, and it is accordingly considered and adjudged, that the said votes of the town of Northwood of September 23, 1882, and July 24, 1884, in the record mentioned, so far as they purport or were intended to exempt from taxation the manufacturing establishment and capital, or any property, of the said Pillsbury Brothers, are repugnant to the law of said state, and so not valid, and therefore that the selectmen of said Northwood, as a municipal court *211 of assessment, erred in their judicial judgment and action upon said invalid votes, and in their assessment of taxes for the year 1884, whereby taxable property of said Pillsbury Brothers was, by the said erroneous judgment and action of said court, illegally exempted from taxation; and that the said court ought to have assessed to said Pillsbury Brothers the taxable property illegally exempted as aforesaid: Whereupon, it is considered, ordered, and adjudged by the court now here that the exemption allowed and adjudged by the said court of assessment as aforesaid, and the judgment of said court of assessment so far as it illegally exempts taxable property as aforesaid, be and the same hereby are reversed and annulled; that the error of exemption in said assessment be corrected; that an assessment of a tax be made to said Pillsbury Brothers on their property illegally exempted as aforesaid, at its value on the first day of April, 1884, and at the rate of that year; that the tax thus assessed be collected by suit or otherwise; that the foregoing orders of assessment and collection be carried into execution by the defendants' successors in the office of selectmen of said Northwood, as a municipal court of assessment; and it is by this court now here further ordered and adjudged that a special mandate do go from this court to the selectmen of said Northwood as such, and as a municipal court of assessment, to carry into execution the foregoing orders of assessment and collection; that if any judgment heretofore rendered in this cause is not compatible with this judgment, it be so modified as to conform hereto; that if any mandate, writ, or other process for the execution of any judgment in this case has issued, the same be recalled and canceled; and that execution be issued in favor of the plaintiffs against the defendants for their taxable costs "
Now, therefore, we command you, the selectmen of said Northwood, to carry into execution the foregoing orders of assessment and collection.
Witness, Charles Doe, Esquire, the 26th day of February, 1887. C. G. Conner, Clerk.
