Bartlett v. Wilson

• Decision Date: 14 March 1887
• Citation: 8 A. 321,59 Vt. 23
• Parties: S. S. BARTLETT v. JAMES WILSON AND TR
• Court: Vermont Supreme Court

8 A. 321

59 Vt. 23

S. S. BARTLETT v. JAMES WILSON AND TR

Supreme Court of Vermont

March 14, 1887

ACTION of assumpsit by the plaintiff as collector of taxes for the town of Brownington, to recover of the defendant taxes assessed on the grand list of said town for the years 1881 and 1882. Plea, general issue. Trial by jury, February Term 1886, Orleans County, ROSS, J., presiding. Verdict and judgment for the plaintiff. The case appears in the opinion.

Judgment reversed, and new trial granted.

L. H Thompson, for the defendant.

To the personal list should have been appended the oath named in the statute. R. L. s. 239. The law requiring the filing of the alphabetical list of personal lists is mandatory. Cooley Tax (1st ed.) 267; Thames Manufacturing Co. v. Lathrop, 7 Conn. 555; Marsh v. Chestnut, 14 Ill. 223; Billings v. Detten, 15 Ill. 218; Reed v Chandler, 32 Vt. 285; Houghton v. Hall, 47 Vt. 333; Brush v. Buker., 56 Vt. 143; Cummings v. Holt, 56 Vt. 384. The quadrennial list of 1882 is invalid for the reason that the listers did not complete the list, as required by R. L. ss. 292-6. The defendant never had any opportunity to be heard as to his real estate list, as provided by sections 297-8, R. L. "The law hears before it condemns." POWERS, J., in Quimby v. Hazen, 54 Vt. 141; Hibbard v. People, 4 Mich. 126. The taxes were not made valid by the curative act, No. 234, Acts of 1882. Exchange Bank Taxes, 21 F. 101. The curative act could not affect those taxes assessed before its passage. Tunbridge v. Smith, 48 Vt. 648; Cooley Tax. 227, 265. The quadrennial list of 1882 is also invalid by reason of doubling the appraisal of defendant's real estate. The doubling clause only relates to the annual April list. The laws regulating the making of the quadrennial list do not require the taxpayer to file an inventory. The law should be construed liberally in favor of the taxpayer. Pott. Dwarris, 245, 257. The law known as the doubling act--R. L. s. 326--is unconstitutional and void. It is in direct conflict with the 14th Amendment of the U. S. Constitution and 9th Article of the Vermont Constitution.

Again, chap. II., sec. 6, of the Constitution of Vermont, provides that the legislative, executive and judicial departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.

By secs. 326 and 227 of Revised Laws, persons are subjected to penalties, punishment and forfeiture of goods without the intervention of the judiciary department of the government; and hence, on this ground the doubling law is void.

One cannot be deprived of his property without "due process of law," "without a regular trial, according to the course and usage of the common law." 1 Kent Com. (11th ed.) 590, 600; Hoke v. Henderson, 4 Dev. (N. C.) 15; 3 Story Const. 661; 4 Hill, 146; Works of Daniel Webster, vol. 5, p. 486; 1 Bl. Com. 44; 2 Story Const. ss. 1934, 1944; Cooley Tax. 261; 44 Ill. 278; Clayton v. Chicago, 44 Ill. 281; Town of Wauwatosa v. Gunyon, 25 Wis. 282. But by this statute power is delegated to listers to impose penalties, forfeitures and punishments.

The law is also unconstitutional because it provides for two unequal methods of taxation on the same class of property and persons. Taylor v. Porter & Ford, 4 N.Y. 140; State v. May, N.J.L. 39-43; McCormick v. Fish, 14 Minn. 264; State v. Allen, 2 McCord (Law) 55-61; McComb v. Bell, 2 Minn. 309; Ryan v. State, 5 Neb. 280; People v. Berberrich, 11 How. Prac. Rep. 311; Baker v. Kelley, 11 Minn. 499; Saco v. Wentworth, 37 Me. 165; State of Tennessee v. Burnett, 6 Heisk. (Tenn.) 189; State of Maine v. Doherty, 60 Me. 504; Quinn v. Hurlburt, 52 Vt. 363; State v. Peterson, 41 Vt. 523.

J. C. Burke, for the defendant.

The grand list is invalid, because the listers did not file a personal list, as required by section 331 R. L. The defendant's name was not on the paper filed, and hence the case stands as though no attempt had been made to comply with said section of the statute. Sedgw. Stat. Law, 308, 368; BARRETT, J., in Crosby v. School District, 35 Vt. 623, 630; Briggs v. Georgia, 15 Vt. 72; Ayers v. Moulton, 51 Vt. 115; Veasie v. China, 50 Me. 518; Roberts v. Downing, 21 Vt. 441.

The grand list of 1882 is invalid by reason of failure on the part of the listers to return the quadrennial list to the town clerk's office with a certificate verified by oath, as required by section to 296. Walker v. Burlington, 56 Vt. 131; Myers v. Moulton, 51 Vt. 115; Rowe v. Hubell, 50 Vt. 637; Houghton v. Hall, 47 Vt. 333; Tunbridge v. Smith, 48 Vt. 648.

A void tax cannot be revived into a legal existence by an act of the legislature. 1 Kent Com. (5th ed.) 455; Tunbridge v. Smith, 48 Vt. 648; Coffin v. Rich, 45 Me. 507; Rich v. Flanders, 39 N.H. 304. Section 326, R. L., known as the doubling clause, allows penalties to be imposed by a ministerial officer without a hearing, and is unconstitutional. Cooley Tax. 313; Blackwell Tax Titles, 30; Newall v. Whitingham, 58 Vt. 341; Scammon v. Chicago, 44 Ill. 269, 278; Clayton v. Chicago, 44 Ill. 286; Binger v. Caston, 1 McMullen, 410, 420; McCormick v. Commonwealth, 14 Me. 252; State v. Allen, 2 McCord, 55; Drexel v. Commonwealth, 46 Penn. St.

Edwards, Dickerman & Young, for the plaintiff.

Section 326, R. L., known as the doubling clause, is not in conflict with the Constitution. The principle involved received a practical construction in this State for forty-four years from March, 1797, to November, 1841. During these years the statutes provided: "And the said listers shall add to said list two-folds, for the whole polls, ratable estate and property, of such persons as shall not have exhibited or delivered lists as before directed, as a penalty on such persons for their neglect, who shall be liable to pay rates or taxes, according to such two-folds. * * * And the listers shall add the sum total of such two-folds to the said general list." Compiled Laws, vol. 2, p. 166; Slade's Compilation (1824), p. 391; Rev. Sts. (1839), p. 541; Session Laws (1841), No. 16.

During all this time the law was administered, and there is no case that intimates a doubt as to the validity of taxes assessed on lists made by two-folding, or as to the constitutionality of the statutes. This subject was twice before the court in Henry v. Edson, 2 Vt. 499; and in Howard v. Shumway, 13 Vt. 358, and neither counsel nor court express a doubt as to the validity of the list or tax upon a list, made by two-folding.

Questions arising under the Constitution, settled by a long and uniform practice, and sanctioned by one judicial decision, should be considered at rest. WILLIAMS, Ch. J., in State v. Bosworth, 13 Vt. 413. The construction of the Constitution by the legislature as given in their acts, ought to have great weight, and not be overruled, unless manifestly erroneous. Kendall v. Kingston, 5 Mass. 533; Portland Bank v. Apthorp, 12 Mass. 257; Adams v. Howe, 14 Mass. 345; Commonwealth v. Bank, 5 Allen, 431; Holmes v. Hunt, 122 Mass. 516; Opinion of Supreme Court, 126 Mass. 594. This same question was passed upon by the Supreme Court of South Carolina in the year 1800, in case of Butler v. Bailey, 2 Bay, 244.

The S. C. statute was passed in 1788, and "imposed double taxes on all persons who should refuse or neglect to make a due return, on oath, of all their taxable property, and authorize the assessors to make the said assessments according to their judgments, and the best information they can get of a defaulter's property."

The court said: "That this court had no right to interpose between the collectors of public revenue and the state treasurers. No such power was given by the Act of 1788, nor was there any principle of public law to warrant such an interference." See Newell v. Whitingham, 58 Vt. 341; State v. Apgar, 31 N.Y. 359; Charleston v. Middlesex, 101 Mass. 87. The same principle is sustained in Pennsylvania. Fox's Appeal, 4 A. 149; 112 Penn. Stat. 337, 357.

The same principle of increasing the taxpayer's list or tax for refusal to make return, or for making a false return of his taxable property, has been sustained by the following cases and authorities. Cooley Tax, 261, 314; Doll v Evans, 11 Am. Law Reg. 315; Biddle v. Oaks, 59 Cal. 94; Lincoln v. City of Worcester, 8 Cush. 63; Otis Co. v. Inhabitants of Ware, 8 Gray, 509; State v. Hamilton, 5 Ind. 310; Boyer v. Jones, 14 Ind. 354; Lansville R. R. Co. v. State, 25 Ind. 177; State v. Oashoe, 7 Nev. 83; Pomery Salt Works v. Davis, 21 Ohio St. 555; Genins v. Auditor, 18 Ohio St. 534; Toll Bridge Co. v. Osborn, 35 Conn. 7; Weber v. Reinhard, 73 Penn. St. 373; Butler's Appeal, 73 Penn. St. 448; Herrick v. Randolph, 13 Vt. 529; Bellows v. Weeks, 41 Vt. 590. The above cases are sufficient authorities for sustaining the principle of this clause of our statute. The grand lists, regular and legal upon their face, are conclusive as to the legality of the defendant's list, under the general issue. Wilson v. Seavey, 38 Vt. 221; Braley v. Burnham, 47 Vt. 717. If the defendant wished to test the legality of any antecedent proceeding he should have set it up by plea or notice. The defendant is in no position to make the objection that his name was omitted from the personal list, when he had personal notice of his assessment, and of the time and place for hearing grievances, in season to secure an appeal, after neglecting to furnish his inventory. Howard v. Shumway, supra; Brock v. Bruce, 58 Vt. 261. The curative statute of 1882 legalized all the lists and taxes involved in this case. Bellows v. Weeks, supra; State v. Apgar, supra; People v. Mitchel, 45 Barb. 208; Walpole v. Elliott, 18 Ind. 258; Lewis v. Eastford, 44 Conn. 477; Waters v. Bacon, 8 Mass. *472; Locke v. Dane, 9 Mass. 363; Locke v. New Orleans,...