196 A. 281 | Vt. | 1938
The plaintiff, a corporation, seeks to enjoin the defendants from collecting certain taxes assessed by the town of Hartford on the former's grand list in that town in the years 1933 and 1934.
It is insisted by the plaintiff that such taxes were illegally assessed because the quadrennial appraisal of 1930, which formed the basis of the real estate taxes here in question, was illegal and because the grand lists of 1933 and 1934 were illegal — all for the reasons and defects hereinafter discussed.
The chancellor, before whom the case was tried below, found that the defendant MacAulay, who was elected first constable of the defendant town in 1934 and again in 1935, and who had begun proceedings to collect the taxes in question by a sale of property, had thereafter removed from that town, leaving the office vacant. So the temporary injunction against him was made permanent. As to the town of Hartford, the chancellor ruled that the taxes were valid and collectible, and modified the preliminary injunction so as to allow the town to proceed anew to collect them by a legal officer — which modification was not to become operative until after the determination of this suit in this court. The plaintiff excepted and appealed.
Those who acted as listers in making the quadrennial appraisal of 1930 were Seth B. Wright, Leslie I. Walker and Romaine A. Spafford. Walker was chosen at the annual meeting of the town in 1929, in this way: He was nominated as a candidate for the office of lister for a three-year term; no other name being presented, it was voted, viva voce, that George G. Nichols be instructed to cast one ballot for Walker for the office named. Such a ballot was cast, and Walker was declared elected lister for the term specified. In exactly the same way, Spafford was chosen as a lister for a three-year term at the annual town meeting in 1930.
Did the method pursued meet the requirements of the statute, and result in a valid election of these men as listers of the defendant town?
Among other things, it is provided by P.L. 3432, subd. VII, that at annual town meetings, there shall be chosen "one lister for the term of three years who shall be elected by ballot." It is also provided in that section that some, but not all, of the other town officers shall be elected by ballot. *330
So a proper construction of this statute will furnish the answer to the question propounded above.
The intention of the Legislature constitutes the law. Coral Gables,Inc. v. Christopher,
We do not stop to consider whether the action of the defendant town comes within the letter of the statute, for we are well assured that it does not come within its spirit.
In statutory construction, the words used by the Legislature are to be taken in their ordinary sense, unless that would lead to an unintended result. Safford v. Houghton's Est.,
An examination of the authorities discloses that from a very early time "voting by ballot" has been a term used to distinguish secret voting from open voting. The privilege of secrecy is of the essence of voting by ballot. This is sustained very generally. In State v. Anderson,
To the same effect are Brisbin v. Cleary,
None of these really adds anything to the law laid down in Temple v.Mead, supra, which has, for many years, been a leading case on this subject, and is very widely cited. The Court in that case said: "The principal object of this last mode [voting by ballot], is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote for either of the candidates who may be before the public."
It is clear that the provision that the lister shall be chosen by ballot necessarily implies an expression of the voter's choice by the deposit of a written or printed ticket bearing the name of his candidate in a receptacle provided therefor, in such a way as to secure to him the privilege of complete secrecy regarding the person voted for. The method adopted by the defendant town did not secure that privilege. It defeated the basic purpose of the Legislature, and did not result in a valid election.
If our conclusion as to the legislative purpose embodied in P.L. 3432 needs any confirmation, it is to be found in P.L. 3433, wherein it is provided that "when election is by ballot, a majority of all the votes cast for any office shall be required for an election thereto, unless otherwise provided by law"; and in P.L. 3448, wherein it is provided that "when a ballot is had, the polls shall be kept open a reasonable time, and reasonable *332 notice of their close shall be given. The votes shall be counted by members of the board of civil authority present."
These provisions show that the Legislature had in mind the old-fashioned ballot hereinbefore described.
It is held that when a state constitution makes certain officers elective, this provision cannot be evaded by any legislative subterfuge.People ex rel. v. Albertson,
The result is that the quadrennial appraisal of 1930 was made up by a board of three listers, two of whom had no authority to act, and that instrument has no validity.
The case shows that the figures entered in the quadrennial appraisal as the taxing value of the plaintiff's real estate were carried into the grand list of the plaintiff for the years 1933 and 1934, and became a part of the plaintiff's taxable property for those years. It has long been the law of this State that this renders all taxes assessed on those lists invalid and uncollectible. Bartlett v. Wilson,
Nor does it avail the defendant anything to show that the listers who made this quadrennial appraisal were de facto officers. That fact would be important in some cases, but has no application here. The listers did not proceed in their own right, at all, but only as officials. Legally elected listers are public officers exercising such governmental functions as the State has entrusted to them. Though they are, in a real sense, State officers, in another sense they serve the town, since their product affords the foundation for securing the money with which the town is able to discharge its governmental duties. One exercising such an office cannot justify his acts on the ground that he was a de facto
officer, in any suit to which he is a party. Cummings v. Clark,
Decree reversed, and cause remanded with direction that the defendantbe permanently enjoined from collecting the taxes in question.