65 A. 378 | N.H. | 1906
Lead Opinion
The question presented by the exception is whether the judgment entered upon the appeal from the tax assessed in 1892 upon the plaintiffs' real estate is evidence of the true value of the same real estate in a subsequent appeal from the taxes assessed upon it in 1895 and 1896. In Winnipiseogee etc. Co. v. Laconia,
The second conclusion reached in that decision is based upon the assumption that the true value of the appellants' property was technically in issue in the prior suit. If the court was right in making this assumption, and the principles of res adjudicata apply in tax appeals notwithstanding our statutory and constitutional provisions for periodic revaluation, then there would seem to be no escape from the conclusion that the judgment in the appeal from the tax of 1892 was conclusive of the value of the property at that time; and not being too remote, was competent evidence of the value of the same property in 1893, on the appeal from the tax of that year. But the rule is settled for this state, at least, that a fact embraced within a judgment, to be competent as evidence in a subsequent suit between the same parties for a different cause of action, must have been technically in issue in the prior *84
suit; and that if the fact was not technically in issue in that suit, — if its ascertainment was made material only by the course of the evidence, — that it cannot be proved by the judgment. King v. Chase,
The value of the appellants' property in 1892 having been actually tried in the appeal from the tax of that year, the material question for our consideration is whether that fact was technically in issue on that appeal. The subject-matter of the appeal was the recovery or abatement of the part of the tax for 1892 that was excessive. To entitle the appellants to a judgment in their favor they should have alleged in their petition and proved (1) that, they had complied with the requirements of chapter 57 of the Public Statutes, and (2) that the tax they had paid or were required to pay was excessive — that it subjected them to more than their fair share of the public expense. The first allegation was essential to give the appellate court jurisdiction. P.S., c. 59, s. 11. The second was the issue upon which the action proceeded. Edes v. Boardman,
As the true value of the appellants' property on the first day of April, 1892, was not technically in issue on the appeal from the tax from that year and became material only by the course of the evidence, it follows that the assumption upon which the decision in Winnipiseogee etc. Co. v. Laconia, supra, was based is erroneous; that the judgment entered upon the appeal from the tax of 1892 is not conclusive evidence of the value of the appellants' real estate for that year, or competent evidence of its value in 1895 or 1896; and that the order must be,
Exception overruled.
PARSONS, C. J., and WALKER, J., did not sit: YOUNG, J., concurred.
Dissenting Opinion
The foregoing opinion, as I understand it, overrules Winnipiseogee etc. Co. v. Laconia,
The statute provisions relating to the abatement of taxes read as follows: "Selectmen, for good cause shown, may abate any tax assessed by them or by their predecessors." P.S., c. 59, s. 10. "If they neglect or refuse so to abate, any person aggrieved, having complied with the requirements of chapter fifty-seven, may, within nine months after notice of such tax, and not afterward, apply by petition to the supreme [now superior] court in the county, at a trial term, who shall make such order thereon as justice requires." Ib., s. 11. To authorize the selectmen to abate *86
taxes, "good cause" must be shown. It is only when they neglect or refuse so to abate — that is, to abate for "good cause" — that the court has jurisdiction of the subject-matter. In a petition to the court for an abatement, it would seem to be prudent, if not necessary, to allege the "good cause" relied upon by the petitioner. State v. Corron,
In the foregoing opinion the court, it seems to me, substitute the result or effect of the "good cause" for the cause itself, as the matter in issue. The excess in the tax — the subjection of the petitioner to more than his fair share of the public expense — is the effect of, or injury occasioned by, the cause relied upon to entitle the petitioner to an abatement, as the injury or damage alleged in an ordinary action at law is the effect or result of the breach of promise or the tort upon which the action proceeds. It is true that there may be many causes for an abatement of taxes — legal exemption from taxation, non-ownership of the property taxed, over-valuation of the property, etc., etc. A party seeking abatement because of the exemption of his property from taxation proceeds in his action on the matter of the exemption. He alleges, in effect if not in form, that he is entitled to exemption under the law by virtue of certain facts — a vote of the town exempting it, for example. In such case, the matter on which he proceeds — the "good cause" which he proposes to show to entitle him to the exemption — is the vote of the town. The matter in *87
issue thus tendered to the defendant is the validity of the vote as respects both law and fact. If the issue is joined and tried, and judgment is rendered thereon, the parties are concluded by the judgment as to the efficacy of the vote, not only in that particular action, but in all subsequent actions of abatement in which the vote is in controversy. In Franklin Needle Co. v. Franklin,
Take the case of over-valuation. The statute requires the selectmen to appraise all taxable property for taxation "at its full and true value in money, as they would appraise the same in payment of a just debt due from a solvent debtor." P. S., c. 58, s. 1. It further requires them to make oath that, in performing the duty this imposed upon them, they "appraised all taxable property at its full value, and as we [they] would appraise the same in payment of a just debt due from a solvent debtor." Ib., s. 6. These redundantly explicit provisions — purposely made redundant to avoid the danger of misunderstanding or misconstruction — were enacted to secure the reasonable apportionment of the burden of taxation required by the constitution. If selectmen and assessors of taxes uniformly performed this duty, and all taxable property was taken into account, the burden of taxation would be distributed among taxpayers according to the true intent expressed in the constitution, and all reasonable grounds for the unrest now existing with reference to taxation would be removed. In that event, the "good cause" for abatement of taxes on account of over-valuation — the matter upon which the petitioner would proceed in his action — would be the excess in the valuation of the property above its "full and true value in money," or, in other words, the true value of the property; for that fact necessarily *88
determines whether there is excess in the valuation and the amount of it. But it a well known and lamentable fact that these provisions of the statutes are not observed. Sometimes one class property in a town is appraised for taxation at one ratio of true value, — six tenths, for example, — while another class is appraised at another ratio, — say one third, — and another class is appraised at its full value. See Amoskeag Mfg. Co. v. Manchester,
When the case of Winnipiseogee etc. Co. v. Laconia,
The other reasons offered by the defendants in support of the superior court's ruling in their favor were submitted to and considered by the court in Winnipiseogee etc. Co. v. Laconia. No reasons have been presented in the arguments of counsel or the decision of the present case, or have been found, which seem to me to be of sufficient weight to justify overruling that case, and consequently I am compelled to dissent from the present decision.