8 N.H. 166 | Superior Court of New Hampshire | 1835
The plantiff’s invoice was given in, and the selectmen had no right to doom. The plaintiff was not bound to remain at home the whole month of April in order to give it in personally. The selectmen do not appear- to have given notice of any particular time and place when they would meet to receive the invoice of the inhabitants. They called at the house of the plaintiff, and one of his family, in
The invoice having been given in by a member of his family, and he having taken no measures to give in any other, he might (unless it was shown to have been done without his authority) be liable to a fourfold tax for any property fraudulently concealed ; but that is not the case here. No attempt was made to assess him for property fraudulently concealed ; but the selectmen proceeded, under the supposition that he possessed property not given in, to set down such property as if no invoice had been given in; or, in the language of the ancient law, to assess him according to their “ will and doom.” Charters and Colony Lates 70. Having no right to doom, the plaintiff is entitled to a remedy.
But it was contended at the trial, and has been argued upon the case saved, that this is a case of over-valuation, and that the plaintiff’s remedy is by application for an abatement. Several authorities have been cited on this point from the reports of Massachusetts, but we can derive little aid from them, on account of a difference in the statutes of the two states. The statute of that state under which those decisions were made, enacts, that if any person shall be aggrieved by being rated more than his proportion, he may apply to the assessors to make a reasonable abatement, and if they refuse so to do, such person may apply to the next court of general sessions of the peace, and, making it appear that he is over-rated, he shall be relieved by said court. 6 Pick. 98, Osborn vs. The Inhabitants of Danvers; 7 Mass. 236, Little vs. Greenleaf; 1 Mass. Laws (ed. 1807) 280.
The statute of July 7, 1827, sect. 14, (N. H. Laws 559) enacts that the selectmen may abate any taxes, provided sufficient reason for such abatement be shown ; “and if the selectmen deny or refuse to make such abatement, the person conceiving himself aggrieved by any tax or assessment, may apply by way of petition to the court of common pleas, in the same county, who are hereby empowered to make such order in the premises as justice may require.” Provided, that such application be made within nine months, &c. “ And provided further, that the court of common pleas shall not have power to abate any taxes, except as to such articles and matters as the selectmen having the power of valuing shall have over-valued, and as to sums set down by way of doomage for not giving an invoice where the person doomed was unable to give an invoice.”
The proviso above cited clearly shows, that the power of the common pleas to abate docs not extend to all cases where an individual is over-rated. It is to be exercised in cases where the selectmen, having the power of valuing the property, have over-valued it; and in cases where a person has been doomed for not giving in an invoice, when in fact he was unable to give one.
The statute of December 16, 1812, establishing the rate at which polls and rateable estates shall be valued in making and assessing direct taxes, shows what is intended by over-valuation. It provided in many cases for the value, and left nothing to the judgment of the selectmen. Thus polls were “ to be valued at one dollar and thirty cents” ; “ cows that have been wintered four winters, each at twenty cents ; all neat stock, that have been wintered three winters only, each at ten cents.” In these and like cases the selectmen had no power to make a valuation. Their duty was merely to ascertain what property of that description the individual possessed, and the statute fixed the value at which it was to be set down in the invoice, without any appraisal or valúa
This power of abatement by the common pleas, or county court, in case of over-valuation, seems anciently to have been confined to the taxes of merchants who were assessed “ according to the will and doom of the assessors,” and found themselves over-valued. Charters and Colony Laws 70.
Since this tax was assessed, a different mode of taking the invoice has been adopted, and the authority of the common pleas to abate, perhaps, thereby extended.
In other cases of injury, such as assessing an individual not liable, or assessing one who is liable, wrongfully, if the selectmen refuse to abate the only remedy is by action. 2 N. H. Rep. 236, State vs. Thompson.
But another point arises upon this case. The plaintiff was liable to taxation in New-Boston, and had property subject to be taxed. The selectmen have assessed upon the polls and estates no greater sum than they were authorized
In Willard vs. Wetherbee, 4 N. H. Rep. 118, which was an action for dooming the plaintiff, and taxing him for more money at interest than he possessed or gave in, the declaration was in case, and no objection was taken.
But trespass is the proper remedy, if none of the property assessed is subject to the tax, or if the individual is not liable to taxation. 2 D. & E. 372, Lord Amherst vs. Lord Somers; 11 Mass. Rep. 220, Agry vs. Young; 5 Mason 504, Thurston vs. Martin. In such case the proceedings are regarded as void.
And so if selectmen doom where they have not authority to do it, the taxation, for the purpose of the remedy, may well be regarded as void. They have not in such case assessed the party upon an invoice given in by him, nor upon a legal dooming by themselves. The tax, therefore, lacks a legal foundation.
But farther — In Stetson vs. Kempton, 13 Mass. 272, the supreme court of that state held, that assessors who assessed a tax in pursuance of a vote for raising money which the town had not authority to pass, were liable in trespass to the individuals whose property was taken to satisfy such tax, and this notwithstanding there was included in such assessment other sums lawfully voted and raised by the town. Chief Justice Parker said, “ where part of a tax is illegal, all ‘ the proceedings to collect it must be void; as it is impossi- ' ble to separate and distinguish, so that the act should be in ‘ part a trespass, and part innocent.”
So assessors cannot lawfully add more than five per cent, to the amount of any tax they are authorized tq assess, and if they do trespass lies. 15 Mass. 144, Libby vs. Burnham.
A similar decision was made, 2 Green. 375, Huse vs. Merriam; vide, also, 1 Green. 339, Elwell vs. Shaw; 3 N. H. Rep. 20, Brackett vs. Whidden.
The principles settled in the foregoing cases seem to apply to the present action. If the selectmen doom an individual who has caused an invoice to be duly given in, and thus tax him beyond the proportion he would have been liable to pay upon the invoice he gave in, and the taxes are collected by distress, the injury is of the same character as if they assess upon him and others a tax beyond the amount authorized by law, and collect it. In the one case the error affects an individual, and in the other it affects all the inhabitants individually. In both, persons are taxed beyond the amount for which they are legally liable. If their property is taken to pay the taxes thus wrongfully assessed, trespass seems to be an appropriate remedy.
It does not follow that an action on the case may not also be sustained. There are instances in which a party has an election to bring trespass or case. 3 N. H. Rep. 466, Dalton vs. Favour, and cases there cited.
And we are of opinion that in this case the plaintiff had an election to treat the wrongful assessment as the injury, and declare in case, or to treat the seizure of his property as the ground of action, and bring trespass.
We are inclined to think that in the latter form of action, the jury may rightfully consider the plaintiff’s liability to some taxes in reduction of damages, so that the result will be the same in whatever form the action is brought.
In this case, as the verdict has been taken for a nominal sum, there must be
Judgment for the plaintiff.