Wilson v. Wheeler

| Vt. | Aug 15, 1882

The opinion of the court was delivered by

Royce, J.

There were many exceptions taken upon the trial, but we shall only consider those that have been insisted upon in this court. It is insisted in the first place that the defendant was ineligible to the office of constable and collector of taxes at the time of his election at the March meeting in 1880. On the 1st day of April, 1879, and for several months thereafterwards, the defendant with his family resided in the town of Morgan, and his poll, personal property, and some real estate were set in the grand list of that town for that year. In July, 1879, he removed to Brownington with his family, and has since resided in that town. The defendant owned real estate in Brownington in 1879, which was set to him in the grand list of that town for that year, and was an inhabitant of that town at the time of his election.

The act approved Nov. 11th, 1869, G. S. page 1036, defining who shall be voters in town meeting, provides that “ every male citizen of the age of twenty-one years whose list shall have been taken in any town or city at the annual assessment next preceding any town or city meeting shall, during their residence in such town or city, be legal voters in town meeting.” One of the officers which towns are required by sec. 2658, R. L., at the annual town meeting to choose from among the inhabitants thereof, is a constable and collector of taxes. It is claimed that the test of eligibility is the qualification to vote in the meeting at which the officer is elected. The defendant, being an inhabitant, had the undoubted right to vote if he had such a list at the annual assessment next preceding that meeting, as is required by the act of 1869. The terms “ list” and “ grand list,” as they are used in our statutes, mean a schedule of the polls and ratable estate of the inhabitants upon which taxes are to be assessed. A list that only represents real estate answers the requirement of the statute as fully as would a list that represented the poll and personal property. It is obvious that the intention of the law was to allow such persons as are subject to taxation in towns and are residents therein to vote in the annual meetings of such towns. The defendant, being an inhabitant of the town of Brownington at the time of his election, and having a list in said town upon which he was subject to be taxed, was eligible to the office to which he was elected.

The ground of the second exception is that there was no competent evidence that the defendant was sworn as required by No. 58 of the laws of 1872. The law requires that constables, grand jurors and listers, before entering upon the duties of their offices, shall be sworn to a faithful discharge of the same, and the town clerk is required to make a record thereof. The only record evidence offered to establish the fact of the defendant’s having been sworn was a copy of the record of his election, in which the word “ sworn ” appeared immediately after his name. In section 14 of chapter 1, R. L., title, “ Construction of Statutes,” it is said that the word “ sworn,” when applied to public officers required by the constitution to take certain oaths, shall refer to those oaths ; and when applied to other officers it shall meán sworn to the faithful discharge of the duties of their, offices before a person authorized to administer oaths. Applying that construction to the word “ sworn ” as it occurs in this record, it does appear that he was sworn as the law required.

Under the law of 1872 listers are required to be sworn in the same manner as constables; and it was held in Day v. Peaslee, 54 Yt. 310, that in the case of listers it was not necessary that the-oath taken by them should be recorded, and that it was no part of their duty to procure such record to be made; and in Blodgett v. Holbrook, 39 Vt. 336" court="Vt." date_filed="1866-08-15" href="https://app.midpage.ai/document/blodgett-v-holbrook-6578255?utm_source=webapp" opinion_id="6578255">39 Vt. 336, that it was competent to prove by parol that the listers were sworn to the truth of the certificate appended to a grand list.

It is claimed that the neglect of Wyman, who was elected constable in 1878, to give such a bond as the law required occasioned a vacancy in the office. It was held in Weston v. Sprague and Edmunds, 54 Vt. 395" court="Vt." date_filed="1882-02-15" href="https://app.midpage.ai/document/town-of-weston-v-sprague-6581717?utm_source=webapp" opinion_id="6581717">54 Vt. 395, that when one is elected constable it is the duty of the selectmen first to move in the matter and require a bond, fix its amount and the kind of security; so whether the security that was given by Wyman answered the requirements of the law or not, the office would not become vacant until further security had been demanded by the selectmen.

The objections that were made to the admissibility of the copies of the warnings and proceedings of the March meetings in 1874 and 1878 for the purpose of showing the election of constable and listers for those years, were properly overruled ; and what has been said as to the evidence which those records furnished of the qualification of those officers need not be. repealed. The lists which were put in evidónce, we think were admissible. They were prima facie legal without being validated by the legislation of 1878 and 1880.

Conceding that it was allowable to show how the listers appraised the property and made up the lists, the more important question arises upon what is shown as to the manner in which they were made up. It is evident that the listers did not comply with the law in the ascertainment and appraisal of the real and personal estate, and in neglecting to set in the list 1500 in money that should have been set to a ratable inhabitant. It does not appear that any intentional wrong or fraud was attempted by the listers, but such errors as were committed by them were errors of judgment. The question presented is whether such errors invalidate a list as a basis for the assessment of taxes so that a collector cannot justify under a warrant commanding him to collect them. In Henry v. Chester, 15 Vt. 460" court="Vt." date_filed="1843-02-15" href="https://app.midpage.ai/document/henry-v-town-of-chester-6572738?utm_source=webapp" opinion_id="6572738">15 Vt. 460, it was held that a list 'would not be rendered void by any error of judgment in the listers; and in Spear v. Braintree, 24 Vt. 414" court="Vt." date_filed="1852-03-15" href="https://app.midpage.ai/document/spear-v-town-of-braintree-6574809?utm_source=webapp" opinion_id="6574809">24 Vt. 414, that where errors and defects in a list' are accidental or Iona fide, it will not render the list void as a basis of taxation. This court has always upheld the validity of lists as bases for taxation where it has appeared that they were made in good faith and the only errors complained of were the result of mistakes in judgment on the part of the town officers. Any holding that should require of the listers a strict and technical compliance with all the requirements of the law in the making up of lists would invalidate most that have been made in the State, and upon which all the State and municipal taxes have been assessed and collected for many years. The tax payers have a remedy against the officers of the towns for any neglect of official duty that operates to their injury, and they should be, remitted to that remedy when there is no fraud shown in the making up of the list. To require the rule that is claimed by the plaintiff would render it impracticable if not impossible to make lists upon which taxes could be assessed and money procured to'carry on the State government and pay the necessary expenses of the various municipalities in the State.' It is said in Cooley on Taxation, p. 154, to have been decided in a number of cases that accidental omissions from taxation of persons or property that should be taxed, occurring through the negligence or default of officers to whom the execution of the taxing law is entrusted, would not have the effect to vitiate the whole tax. The execution of such laws is necessarily entrusted to men, and men are fallible, — liable to frequent mistakes of fact and errors of judgment. If such errors on the part of those who are attempting in good faith to perform their duties should vitiate the whole tax, no tax could be collected.

The judgment is affirmed.