| Vt. | Mar 15, 1868
The opinion of the court was delivered by
Prior to and at the time the process in this •case was served on the town as trustee, said town was owing the defendant the sum of $112 for professional services theretofore rendered. At the same time there was a town tax against the defendant, unpaid, of $131.88. It is claimed that, by virtue of ¡section 52 of chapter 36 of the General Statutes, the town is entitled to apply said tax upon said debt, and, as the tax is larger than the debt, it can not be chargeable as trustee.
Whether it can be so applied, depends upon determining whether the tax is a contract, express or implied. It certainly does not partake of the ordinary qualities of a contract, nor in its origin, and creation, and mode of enforcement, answer to any technical definition or common idea of a contract. A tax does not grow out of any transactions between the parties. It is a duty imposed by arbitrary law, predicated upon the relations of the individual to the body politic. It does not partake of the character of a judgment. That is the result of personal acts, and relations as to private rights of person and property, ascertained and adjudged in due course of judicial proceedings. The only resemblance of a tax to a judgment is that it is for a sum certain, fixed by law, and may be enforced by final compulsory process against the property and body of the person taxed.
There is nothing in the character of a tax, from which any feature of an implied contract can arise. A tax can not be enforced, by suit in the name or behalf of the town. In certain cases the collector may reach property in satisfaction of a tax by trustee process. The object of that is, not to establish the tax by a judgment, but only a process by which the rights and credits in action of the party taxed may be reached, for want of property or body on which to fasten by the warrant. The case, therefore, does not fall within the terms of that section.
Nor is there any ground for extending its operation for equitable considerations. There are no equitable considerations in favor of the town. The law provides for assessing the tax against the individual in spite of himself and of any opposition he may make to it. It provides ample, and the most inexorable, means for-enforcing its payment or satisfaction. The law confers no further right, nor does it contemplate any. The town is in no danger of suffering loss by the non-payment of the tax, or by reason of inability to collect it, beyond what is incident to the subject, in view of the means specifically provided for enforcing it. In this particular case there is nothing shown why the tax may not be collected upon the tax-bill and warrant, either by the voluntary payment of the defendant or by distress of property. So that, in no view, either general, as to the subject itself, or particular, as to the case in hand, is there any ground for invoking equitable; considerations in favor of the town.
To hold in this case as is claimed for the trustee, would open the way to supposable and probable complications that would tax. professional and judicial wit to solve, to an extent that would not' be likely to be compensated by any beneficial results that would be realized therefrom. On the other hand, to hold as we do, leaves the town armed with all -the means intended by the law to, be used for making the tax available, and leaves the debt due to-the defendant available to the creditor for the satisfaction of' his debt, by means provided by the law for that express purpose-
This view of this aspect of tbe case removes tbe only ground upon wbicb tbe other view can be rested with any plausibility. Inasmuch as there was no perfected application of tbe debt upon tbe tax, we have no reason arising from equitable considerations, to give what passed between the selectmen and tbe defendant operation beyond its strictly legal force.
We make no intimation of views as to tbe authority of tbe selectmen, as such, to make such settlement of taxes.
A case in Windsor county, recently decided, in wbicb Prout, J., delivered tbe opinion, involved principles that would seem to bear strongly on that subject.
Tbe judgment is reversed, and the trustee adjudged chargeable for said 1112.