80 A. 504 | N.H. | 1911
Lead Opinion
1. The first objection raised to the maintenance this suit is that the record introduced in evidence is insufficient and incompetent to prove the assessment of a tax, because the record was not signed by the selectmen. Authority for this proposition is found in the reasoning in Perkins v. Langmaid,
The view that the record is the assessment, in the sense that it is the essence of the judicial act of fixing the amount of the tax, is not the law in this state. The statute "requires the selectmen to assess the polls and estates their just and equal proportion, to make a list of such assessments, and commit it, with their warrant, to the collector. The subsequent proceedings, such as recording the invoice and assessment in their own book, and causing them to be recorded by the town clerk, are for the purpose of preserving the memory and making a publication of their doings. The omission of any or all of them cannot vitiate the assessment, or vacate the warrant which has already gone forth for the collection of the taxes. These things they are required to do, and to do seasonably, that people may inspect the records when made, and not that there may be a valid assessment, or that an assessment already made and committed for collection may remain good." Smith v. Bradley,
An assessment is a judgment, but the record is no more the vital thing than is the recorded judgment of any other court. It would be a strange anomaly if the rule were more strict as to the records of these lay tribunals than in the case of courts composed of trained lawyers, officered by clerks whose special work is keeping correct and formal memorials of court proceedings. In the case of courts, mere docket entries are sufficient data for a judgment. *172
If suit is brought on that judgment, and the defendant pleads nul tiel record, the extended and formal record may then be made up and signed, and the defendant's plea goes for nothing. Willard v. Harvey,
It is found as a fact that the selectmen made the assessment. and entered in their record book the unsigned memorial of their transaction. No reason having been suggested why the judicial acts of selectmen should be evidenced by a more perfect record than those of a court, the proof must be considered sufficient. No logic can make it appear that the latter are sufficient wherein the former would be fatally defective. If the records are amendable on proof, there seems to be no sufficient reason why they are not provable without amendment. State v. Cox, supra. If, however, the defendant insists upon a formal record, the superior court can order that the record be amended by adding the signatures of the selectmen, and this order will be recorded in the books of the selectmen and town clerk. This course is not the creation of a new cause of action after suit was begun. It is a mere matter of evidence. The opposite conclusion can be reached only by putting the memorial in the place of the chronicled event.
2. Another defence made is that there was no demand upon the executor before the suit was brought. All taxes being assessed as of April 1 (P. S., c. 57, s. 1), this assessment relates back to that *173
date, and was properly made in the name of the taxpayer who died after April 1 and before the assessment was made. It was therefore a claim against her estate and subject to the provisions of law governing such causes of action. There was here a sufficient presentment, but no such demand as the statute prescribes. Judge of Probate v. Runnells,
The companion provision for exhibition of the claim is a statute of limitations, calculated to promote the speedy settlement of estates. For this reason it has been said that it could not be waived in such a way as to extend the time during which estates might be kept open. Preston v. Cutter,
3. The tax was assessed without notice. If, as the defendant claims, the assessment were under section 9, chapter 59, Public Statutes, this might be fatal to the proceeding. But the tax was not so assessed. That statute was enacted to make provision for supplemental assessments in cases where the selectmen through inadvertence or mistake had omitted taxable property from their *175
invoice, or set it down to a person not liable to be taxed for it (Boody v. Watson,
These provisions are merely a revision and consolidation of old statutes pertaining to the same subject; but the defendant says they apply only to making an original assessment, when the taxpayer fails to return an inventory, or returns one which in the opinion of the selectmen does not contain a full and correct statement of his taxable property, and that they in no way contemplate the making of a supplemental assessment, where the taxpayer has willfully concealed a portion of his taxable property and the fraud is not discovered until after completion of the original assessment. An examination of the early statutes on the subject discloses that the consolidated statute confers authority to make supplemental as well as original assessments. The doomage law (for failing to return an inventory) and the fourfolding law (for returning a false inventory) were kept separate and distinct until 1878. The added assessment under the latter provision was to be made "upon the discovery of the fraud." Laws, ed. 1792, p. 184; R. S., c. 41, s. 6. In the next revision the provision that the assessment should be made "upon the discovery of the fraud" was omitted (G. S., c. 51, s. 6), but no change in the meaning of the statute was intended. Comm'rs' Rep. G. S., c. 52, s. 6. In 1878, the legislature consolidated the doomage and fourfolding provisions in substantially their present form. Laws 1878, c. 69, s. 4. The contention is that by this consolidation the effective punishment for a well devised fraud was taken away. Unless it was discovered before the regular annual *176 assessment was completed, the perpetrator had escaped. He could then only be assessed the single tax, under section 9, chapter 59, Public Statutes. This contention cannot be sustained. There is no evidence of a legislative purpose in 1878 to make the evasion of taxation easier than it had been. An analysis of the present statute (P. S, c. 57, ss. 14, 15) leads to the conclusion that there has been no repeal of the power to assess upon discovery of the fraud. These sections were not drawn with any regard to logical order or sequence, but when so arranged the following is deducible from them:
(1) If a taxpayer shall willfully omit to make and return the required inventory, the selectmen or assessors shall ascertain in such way as they may be able, and as nearly as practicable, the amount and value of the property for which he is taxable, and shall set down to him by way of doomage four times as much as such property would be taxable if truly returned and inventoried (s. 15).
(2) If an inventory is returned, the selectmen or assessors shall assess a tax in accordance with their appraisal of the property therein mentioned, if they are of the opinion that it contains a full and true statement of the property for which he is taxable (s. 14).
(3) If an inventory is returned, but the selectmen or assessors are of the opinion that it does not contain a full and correct statement of the property for which he is taxable, or that in making the same he has willfully omitted to give the required information, or that he has made false answers or statements therein, the selectmen or assessors shall proceed as where no inventory is returned (s. 15).
(4) If an inventory has been returned, and the selectmen or assessors upon receiving it were of the opinion that it contained a full and correct statement of the property for which the person was taxable, and assessed a tax upon the property returned as provided in section 14, but the person has willfully made a false return therein, the selectmen or assessors shall, upon discovery of the fraud, ascertain in such way as they may be able and as nearly as practicable the amount and value of the property concealed for which such person is taxable, and shall set down the fourfold tax (s. 15).
4. The provision for fourfolding the tax upon discovery of the fraudulent omission of property from the inventory returned imposes a penalty. It is so designated in the margin of the early editions of the statutes (Laws, ed. 1792, p. 184; Laws, ed. 1805, p. 215; R. S, c. 41; C.S., c. 43; G.S., c. 51, s. 6) and in the decided *177
cases. Perry's Petition,
But the question of the validity of the action imposing the penalty cannot be litigated here. The selectmen had jurisdiction of the party by her residence in town on April 1. The proceeding is the assessment of 1907. Jurisdiction having been obtained, it was not lost by the death of a party pendente lite, so as to make the judgment thereafter rendered void. The erroneous decision that the penalty might still be enforced was merely the passing upon a question of law presented in the regular course of matters within the selectmen's jurisdiction. Their judgment, based on that decision, is not open to collateral attack. Clifford v. Plumer,
One defect in the reasoning leading to the conclusion that the assessment is void rather than voidable is the assumption that the action taken in August was a proceeding de novo. It was a part of the assessment of the tax for that year. It was no more a new proceeding, requiring notice, than was the ordinary assessment which was made some weeks earlier than this and some weeks after April 1. Both relate to and take effect as of that date. Jurisdiction then obtained supports both parts of the judgment alike. When the first tax was assessed against Maria Adams, the proceeding might or might not be at an end. Unless she had committed a fraud, that was the end of the case. If she had done so, there were to be further proceedings and an added assessment. The fraud having been discovered, it was the duty of the selectmen to act under the statute. Their error in deciding that the fourfolding [four-folding] *178
provision survived Maria Adams' death was an error of law, committed in the course of the performance of their duty in a case where they had jurisdiction. Such an error can be reached only by a direct proceeding. Canaan v. District,
Nor is it true that the defendant is without other remedy[.] He may even now apply to the selectmen of Jaffrey for an abatement of the wrongfully assessed penalty. P. S., c. 59, s. 10. It has been suggested in argument that Maria Adams may not have owned the property on account of which this tax was assessed on April 1. The fact that she owned it April 27 is evidence that she did on April 1. If, however, the executor can show that this is not the truth of the case, he will have opportunity to do so upon his petition to the selectmen for abatement, and thereby obtain further relief.
Case discharged.
All concurred.
After the foregoing opinion was filed in Jaffrey v. Smith, on June 7, 1910, the defendant moved for a rehearing[.] He also applied to the selectmen of Jaffrey for an abatement of the penalty. The abatement was refused, the reason assigned being laches in applying to the selectmen and that Maria R. Adams had cheated the town out of its just taxes in past years. Thereupon the executor filed a petition in the superior court for a review of alleged errors of law in the action of the selectmen, which is the second action. A demurrer to the petition was transferred without ruling from the October term, 1910, of the superior court by Mitchell, J., and was heard in connection with the motion for a rehearing.
Addendum
It will not be necessary to now consider whether the executor has lost all right to have the erroneous assessment corrected by any form of abatement proceedings. He now insists, as the former opinion suggested he might, upon a more complete record of the original assessment. This necessitates the procurement *179
of an amendment to the record by the town. While under ordinary circumstances such amendment would be ordered as a matter of course, yet that is not always the case. "Generally, amendments are not allowed to affect the vested rights of third parties, or where injustice will be done to any one. Chamberlain v. Crane,
On the other hand, an entire refusal to correct the assessment record would enable the executor to escape the payment of the original tax. Justice, then, plainly requires such an order as will compel the payment of the tax and relieve from the payment of the penalty. Whether that order be in the positive form — making the amendment upon the town's filing a release of its claim for the penalty — or in the negative form of refusing the amendment upon the payment by the executor of the single tax, with interest at the statutory rate and costs, seems immaterial.
While the question whether an amendment shall be allowed is usually one of fact for the superior court, yet the question whether it can be allowed is one of law. Sawyer v. Railroad,
The executor is ready to pay the single tax, and wishes to do so at once to escape further liability for a high rate of interest. The superior court for Cheshire county is not now in session; and in view of the course pursued by the town's prudential officers when acting on this matter in their judicial capacity, justice appears to require that an order for judgment be now entered. Because of this situation, judgment is now ordered for the town, as of June 6, 1911, for $6,400.26. In Smith v. Jaffrey the order is,
Petition dismissed.
All concurred. *180