Perley v. Parker

20 N.H. 263 | Superior Court of New Hampshire | 1850

Wilcox, J.

This action is brought for illegally taking the plaintiff’s property. If that act is not justified, then trespass is the proper action. If the ground of complaint was an improper assessment, or any official misconduct of the defendants, then the remedy is case. In Perry v. Buss, 15 N. H. 224, it was said that trespass would lie “ where the party was not liable to the assessment of any tax, or where the party making the assessment had no authority to assess a tax. But if the authority exists to assess taxes, and the party was liable to some tax, then trespass may not be a proper remedy.” Walker v. Cochran, 8 N. H. 166.

On the part of the plaintiff it is said, that as he gave in his invoice when called upon by the selectmen, they had no power to tax him for any property not included in such invoice, except by force of the statute which provides for the imposition of the four-fold tax in cases of fraudulent concealment or omission of such property in rendering the required invoice. The statute referred to (Rev. Stat., ch. 41, see. 6) provides for the “wilful omission” of taxable property in rendering the account required by the selectmen, and prescribes the four-fold tax as a penalty for “the fraud,” as the statute designates such wilful omission. It has been held that such a penalty is not authorized except in cases of fraudulent and wilful omission; and that where the omission has arisen from the party’s mistake, whether of his liability to be taxed for such property, his ownership of it, or otherwise, the case was not presented which justified the imposition of the four-fold tax. Perry’s Petition, Cheshire, July, 1844. The consequence would seem to follow, if the plaintiff’s position is sound, that by omitting any property from the invoice not through fraud, it would escape taxation entirely.

It may not be necessary in this case to determine whether such a consequence would follow an omission founded in mistake and misapprehension of facts, or of the legal rights of the party, since a precedent inquiry must be made, whether the plaintiff ever gave in to the selectmen the account or invoice contemplated by the statute.

Such an account or invoice must be rendered upon the request of the selectmen; it must be certain and definite, and one to which an oath can be taken, if required. Sec. 4.

The present is not so strong a case as Tucker v. Aiken, 7 N. H. 120, where the invoice was held insufficient. There the plaintiff, when called upon, gave an account of his cattle and other property, but as to his bank stock and money, replied that he was taxed high enough the year before; but if it would be of any advantage in taxing others correctly, he was willing to be raised five dollars. To this the selectmen assented, but afterwards, on learning other facts, added $6,000 to his bank stock of the year before. It was held, that this was not giving an account of his bank stock and money.

In the present case, the plaintiff showed his oxen, and gave an account of his other cattle and property, and as to real estate said it was about as last year, except a place which he had sold for $1000, and he gave in that $1000 as money at interest. Now this may all have been fairly intended, on the part of this plaintiff, but if it be sanctioned as a sufficient invoice, it is so loose and indefinite that it may be made the means of evading rather than of giving a true account. It is not an invoice that could be sworn to. His real estate was “ about the same as the year before what is the import of the word “ about” in such a connection ? And are the selectmen to undertake to hunt up what he was taxed for the year before ?

So he gave in “ that $1000 as money at interest.” He did not assume to give in $1000 generally, as his money at interest, for that would imply that he had no more at interest; but the case finds that he gave in “ that $1000 as money at interest,” which was proper. Still he might have other money at interest for which he was taxable. Supposing this account had been sworn to by the plaintiff, and he had been indicted for perjury because he had more real estate or money at interest than the invoice specified. He might well say that he had sworn only that his real estate was about what it was the year before, and that “ that $1000” was taxable, without saying that he had no more.

"We are, therefore, of the opinion that the plaintiff’ did not give in an invoice or account of his taxable property within the meaning of the statute. If an invoice is insufficient for one kind of property it is so for all.

It thus becomes immaterial whether the plaintiff had or had not the stock in banks and other corporations, stock in trade and other property, for which he was taxed. Rev. Stat., eh. 41, sec. 5.

But it is said that the warrant is void because it does not follow the assessment; that it is for a less sum than the tax actually assessed, the plaintiff having heen credited with an amount supposed to be due him from the town on account of the interest of the surplus revenue fund; and a ease is cited from Maine where the warrant was held void because it exceeded the tax. "We think, however, that the defendants cannot for this cause be held to be trespassers. They have not, as was the case in Maine, exceeded their authority; they have kept within it. They have only collected of the plaintiff less than they had the right to collect. They have done him no injury. There are many cases where tax payers have credit on their taxes for payments previously made, especially highway taxes, for labor done the year before ; and some towns give the inhabitants the right to pay to the treasurer by a certain time, and on such payments make them a fixed allowance ; and the taxes remaining unpaid are then committed to a collector for collection.

The taxes are duly assessed. The warrant in such cases may be for the full amount, with a credit of the payment, or perhaps it may be for the balance. Whichever course is pursued, the warrant is substantially for the balance; and it appears that the money to be collected is for taxes, and for that year, and for what purpose. If any action would lie for the ■ plaintiff in such a case, it would seem that under our statutes it must be case and not trespass, for this mere irregularity in the proceedings of the selectmen. An execution on a judgment paid in part-, issues for the balance due. It is true it recites the judgment as originally rendered, and the part payment; but this recital is matter of form, and if omitted might be amended, if necessary. The effective part of the execution is the command to levy the balance due.

But it is said that the defendants did not deduct so much as they ought to have done, under the vote appropriating the interest of the revenue fund to the payment of the taxes.' If this be so the plaintiff has an appropriate remedy. As there is no evidence that the defendants acted from any improper motives in this matter, bnt only that they have not allowed the plaintiff as much credit on his taxes as he was entitled to, and as they have only collected a just tax against him, his remedy is by an action on the case, or in some other form than trespass against the selectmen to recover what he has lost by such omission. The tax is not void by reason of the error. Perhaps if the plaintiff had tendered the amount due, after deducting the credit to which he was entitled, it might have discharged him.

Judgment for the defendants.