Aiken v. Malloy

• Decision Date: 05 February 1974
• Docket Number: No. 93-73,93-73
• Citation: 132 Vt. 200,315 A.2d 488
• Parties: Josephine L. AIKEN et al. v. James E. MALLOY, Commissioner of Motor Vehicles of Vermont.
• Court: Vermont Supreme Court

Page 488

315 A.2d 488

132 Vt. 200

Josephine L. AIKEN et al. v. James E. MALLOY, Commissioner of Motor Vehicles of Vermont.

No. 93-73.

Supreme Court of Vermont.

Feb. 5, 1974.

John A. Dooley, III, Burlington, J. Morris Clark, St. Albans, William M. Dorsch, Vermont Legal Aid, Inc., Bellow Falls, for plaintiffs.

Kimberly B. Cheney, Atty. Gen., and William O. Wuester, Asst. Atty. Gen., for defendant.

Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.

KEYSER, Justice.

Plaintiff Aiken brought a complaint for a declaratory judgment and injunctive relief relating to the enforcement of 23 V.S.A. § 604 by the commissioner of motor vehicles. The statute authorizes the commissioner to suspend the license of a motor vehicle operator whose poll tax is delinquent. Plaintiff instituted action on behalf of herself and alleged she represented a class of persons similarly situated. There are twenty-two other plaintiffs whom the court allowed to intervene and file complaints.

The challenge is of constitutional dimension since each plaintiff claims that the license suspension under the statute is unconstitutional as to them because (1) poll taxes were wrongfully assessed against them and (2) they never had the opportunity to contest this assessment before their licenses were suspended. They also claim that the collection procedure of suspending their operator's license for nonpayment of poll taxes denies them equal protection of the law.

The case was heard on stipulated facts. Based on its findings of facts, the court issued an order permanently enjoining the commissioner from suspending the operator's license of each plaintiff with the exception of plaintiff Aiken. The court dismissed her as a party; it being stipulated that her tax had been abated.

The lower court held that the statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, in that it failed to provide for hearing before the defendant prior to his suspensions of the plaintiffs' operator's licenses and that such suspensions for the failure to pay a poll tax does not bear a rational relationship or compelling State interest to public safety.

Before we turn to a review of the correctness of the lower court's order, we must examine the statutory manner in which a poll tax liability is imposed.

The listers are charged with the duty of setting the polls of all inhabitants of the State not exempted under 32 V.S.A. § 3801. 32 V.S.A. §§ 3601, 5014. Such polls are either set in the grand list of the town wherein such inhabitants reside on April 1 of each year (32 V.S.A. §§ 3601, 4152), or set in a separate list and filed in a separate book apart from the property list, both of which are part of the grand list (32 V.S.A. § 5020).

The parties have agreed that the polls of the plaintiffs in this case were set according to the latter procedure, which subsequently provides for the following: The poll list must be filed by the listers either on or before May 1 of each year in towns having less than 4,000 ratable polls or on or before May 10 of each year in towns having 4,000 or more ratable polls. 32 V.S.A. § 5014. After the poll list is filed, the selectmen shall assess the poll tax of each tax-paying inhabitant of the town and make a rate bill of all poll taxes, the rate on each poll determined by combining the rate of taxes voted by the town and each municipality within such town in which the individual taxpayer resides. 32 V.S.A. § 5015.

Also included in that assessment is the old age assistance tax of $5.00 and collected along with the poll tax as a single tax. 32 V.S.A. §§ 5012, 5013. Ninety-five per cent of the old age assistance tax assessed is pledged revenue to the Department of Social Welfare for public assistance to aged persons. 32 V.S.A. § 5012(a).

Under this procedure, the selectmen shall place the poll tax bill in the hands of the collector of town taxes, or treasurer as the receiver of taxes, either of whom shall forthwith collect the poll taxes in the manner provided for the collection of town taxes placed in his hands. 32 V.S.A. § 5017. If a poll tax becomes delinquent, the collector may, among other remedies, seek to have the delinquent taxpayer's operator's license suspended by the defendant as provided in 23 V.S.A. § 604, which reads:

. . . The collector of taxes of any municipality, school district or fire district may, after poll taxes become delinquent, submit to the commissioner a typewritten list containing the full name in alphabetical order of surnames and the address of delinquent taxpayers with a request to insert opposite each name on such list the operator's number, if any appears on record. Upon return of such list such collector of taxes shall, if an operator's license appears of record, submit on forms to be furnished by the commissioner, a request for the suspension of the operator's license of a delinquent taxpayer, furnishing such commissioner with the full name, address and operator license number of the person to be suspended and the reason for the request. The commissioner shall, provided such tax collector certifies in writing that to the best of his knowledge and belief such taxes are unpaid and that a demand for such taxes has been made in person or in writing and that the taxpayer or person liable for payment of the tax neglects and refuses to pay same, suspend the operator's license of such person and shall not reinstate or re-issue another license to such person until notified in writing by the collector that such person is no longer delinquent in the payment of such taxes. A collector of taxes shall immediately notify the commissioner, in writing, when payment of such delinquent taxes has been made.

At the outset of the examination of the adequacy of due process afforded to the plaintiffs prior to the requests made to the defendant to suspend their operator's licenses for failure to pay poll taxes, we recall the words of Justice Moulton in Clark v. City of Burlington, 101 Vt. 391, 410, 143 A. 677, 685 (1928):

Where a statute itself makes an assessment . . . for purposes of taxation the tax being recoverable by suit, it is not required, in order to constitute due process of law, that any other notice than that contained in the statute be given the taxpayer. Clement National Bank v. State of Vermont, 231 U.S. 120, 143, 34 S.Ct. 31, 58 L.Ed. 147, 158; Bell's Gap R. R. Co. v. Pennsylvania, 134 U.S. 232, 10 S.Ct. 533, 33 L.Ed. 892, 895. 'But where the Legislature * * * commits to some subordinate body the duty of * * * making the assessment, * * * due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer must have opportunity to be heard, and notice, either personal, by publication, or by a law fixing the time and place for hearing.' Londoner v. Denver, 210 U.S. 373, 385, 28 S.Ct. 708, 714, 52 L.Ed. 1103, 1112; Turner v. Wade, 254 U.S. 64, 68, 41 S.Ct. 27, 28, 65 L.Ed. 134.

Here, the Legislature committed to the selectmen of towns the duty of assessing the poll tax. Coupled with the assessment, the Legislature has provided the operator's license suspension as a penalty for nonpayment as a weapon in the arsenal of the town tax collector to collect that tax.

While an operator's license

is not natural or unrestrained right but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare, State v. Muzzy, 124 Vt. 222, 224, 202 A.2d 267, 269 (1964),

it is an important and valued privilege which may not be arbitrarily suspended or revoked. McGarry v. Costello, 128 Vt. 234, 240, 260 A.2d 402 (1969); In re Bolio v. Malloy, 126 Vt. 424, 427, 234 A.2d 336 (1967). Mr. Justice Brennan, writing for the Court in Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971), stated:

Once (operators') licenses are issued . . . their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of licenses. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1101, 25 L.Ed.2d 287 (1970). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a 'right' or a 'privilege'.

Mr. Justice Brennan continued:

(D)ue process requires that when a State seeks to terminate an interest such that here involved, it must afford 'notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective. Id., 402 U.S. at 542, 91 S.Ct. at 1591.

We next turn to the sufficiency of the notice given to the taxpayer provided under the statutory scheme for collection of the poll tax, which must, of course, be examined in the light of the penalty of suspension of the operator's license for the nonpayment of that tax. Several alternatives are provided for notice to taxpayers by either the collector of the town taxes or the treasurer as receiver of taxes. The collector, after receiving the tax bill, shall endorse on the bill the time when he received it and immediately give ten days' notice in writing to each taxpayer of the amount of his tax and where it is to be paid. 32 V.S.A. § 4772(a). The collector or treasurer, after receiving the tax bill, shall endorse on the bill the time when he received it, immediately post notice in three public places in the municipality giving at least ten days' notice of when and where such taxes are to be paid, and mail a similar notice specifying among other things the amount of the tax to each taxpayer. 32...