Boody v. Watson

• Citation: 9 A. 794,64 N.H. 162
• Parties: BOODY and others v. WATSON and others.
• Decision Date: 11 March 1887
• Court: Supreme Court of New Hampshire

9 A. 794

64 N.H. 162

BOODY and others

v. WATSON and others.¹

Supreme Court of New Hampshire.

March 11, 1887.

[Copyrighted material omitted.]

Reserved case from Rockingham county.

Petition against the selectmen of Northwood for an order upon them to assess a tax, for a writ of mandamus, and for general relief. Reported 63 N. H. 320. After the case was decided at the June term, 1885, the question was raised whether the writ could be issued after the expiration of the tax year during which the selectmen were authorized to make a reassessment by the act of 1878, (Gen. Laws, c. 57, § 10,) which provides: "If the selectmen, before the expiration of the year for which a tax has been assessed, shall discover that the same has been taxed to a person not by law liable, they may, upon abatement of such tax, and upon notice to the person liable for such tax, impose the same upon the person so liable. And also, if it shall be found that any person or property shall have escaped taxation, the selectmen, upon notice to the person, shall impose a tax upon the person or property so liable."

Marston & Eastman, for plaintiffs.

Bingham & Mitchell, for defendants.

DOE, C. J. By express statute, the shoe factory of the Pillsbury Bros., located in Northwood, was taxable in that town in 1884. Gen. Laws, cc. 53, 54. Under section 10 of chapter 53 it has been exempted, by a vote of the town, for the term of 10 years, and that term had expired. July 31, 1885, it was decided in this case that the exemption law did not authorize the second vote of the town continuing the exemption for another term of 10 years; that the second vote was void, and no defense to this suit; that the omission of the factory, in the assessment of 1884, in pursuance of the illegal vote, was error, and a violation of the public right of taxation; and that the plaintiffs were entitled to a judgment for a correction of the error. Boody v. Watson, 63 N. H. 320. They were entitled to relief in this suit when it was brought in 1884, and until April 1, 1885. The merits of the case having been decided in their favor, the only remaining question is one of remedy.

The defense now is not a denial of the adjudicated violation of the plaintiffs' legal and equitable right, nor a defect of remedy when the suit was brought, nor a mistake in the alterable form of action, nor any delay in bringing or prosecuting the suit, nor any fault or laches of the plaintiffs at any time, but an alleged failure of remedy happening 10 months after the suit was brought, while the court were forming the opinion that the plaintiffs were entitled to a reversal of the exemption. The question whether their adjudicated right can now be vindicated by a judgment for the correction of the defendants' adjudicated error, or whether the remedy expired on the last day of March, 1885, brings into consideration the origin and nature of the right, and the distinction between the right and its remedy.

"All government, of right, originates from the people,—is founded in consent. * * * When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others. * * * All power residing originally in and being derived from the people, all the magistrates and officers of government are their substitutes and agents. * * * Every member of the community has a right to be protected by it in the enjoyment of his life, liberty, and property. He is therefore bound to contribute his share in the expense of such protection." Bill of Rights, arts. 1, 3, 8, 12. "The people inhabiting the territory formerly called the 'Province of New Hampshire' do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic or state, by the name of the state of New Hampshire. The supreme legislative power within this state shall be vested in the senate and house of representatives." Const, arts. 1, 2. In the exercise of authority given by the social contract thus made as the origin and organic law of the state, (State v. United States & C. Exp. Co., 60 N. H. 219, 253,) the legislative agents of the community, determining by a general rule the shares of public expense which the owners of this factory and the owners of other property are bound to contribute, have decided what the law shall be. Other public agents decide what the tax law is, and what the facts are in a particular case, apply the law to the facts, and state the result in a tax assessment.

In determining what property was taxable, and what was exempt, the defendants acted judicially; and they are not liable, in an action for damages, for errors in their decision. Hayes v. Hanson, 12 N. H. 284, 289; Perkins v. Langmaid, 34 N. H. 315, 326; Edes v. Boardman, 58 N. H. 580, 584, 585, 596; Salisbury v. County, 59 N. H. 359, 362; Barnardiston v. Soame, 6 State Tr. 1063, 1096, 1097, 1119; Colman v. Anderson, 10 Mass. 105, 118, 119; Weaver v. Bevendorf, 3 Denio, 117; Williams v. Weaver, 75 N. Y. 30, 33, and 100 U. S. 547, 548; Stmsburgh v. Mayor, 87 N. Y. 452, 455; 15 Amer. Law Rev. 502; Cooley, Tax'n, (2d Ed.) 786-795.

In Barhyte v. Shepherd, 35 N. Y. 238, 250, 251, an action against assessors for assessing the plaintiff, and refusing to exempt him, the court say: "The plaintiff is a resident of the town of Spencer, having in his occupancy a farm of 147 acres, and owning personal property. The assessors are not bound to know that there is any reason why this property should not be assessed with the other property of their town; or, if there may be a right of exemption, they have no means of knowing that the plaintiff would desire to claim the benefit of it. He is therefore, in the first instance, properly chargeable on the assessment roll with the property owned by him. He may, and in the present case he did, appear before the assessors, and claim an exemption or a deduction on two grounds: First, he claimed an abatement from his personal property on the ground that he owed debts equal to its value, which by another provision of the law entitled him to such deduction. This fact he was bound to establish by oath, and subject to a cross-examination by the assessors, who, after hearing his evidence and deliberating upon it, would decide the question, and allow or disallow his claim as the truth should require. He also claimed a deduction on the ground that he was a minister of the Gospel, and gave his own evidence on this point, and was cross-examined by the assessors. They disallowed his claim, holding, as I conclude upon the evidence he gave them, that the calling of a minister must be exclusive, and that his occupation as a farmer during the week days prevented him from claiming the benefit of the deduction allowed to a minister. In each and all of the cases I have suggested under this statute, the action of the assessors is eminently judicial in its nature. To administer oaths, to hear evidence, to weigh its effect, to compare it with the law, and to decide the question presented, are of the essence of judicial action. To make the figures indicating a deduction, and to make the deduction itself, on the assessment roll, may be conceded to be a ministerial act; but to arrive at the conclusion, by hearing and weighing evidence, judging of its credibility, and comparing the evidence with the provisions of law, that the plaintiff was entitled to a deduction, is as far from a ministerial act as can well be imagined. The defendants had jurisdiction of the subject-matter of their proceeding, and of the person of the party interested."

The defendant's immunity "does not depend at all on the grade of the office, but exclusively upon the nature of the duty." Cooley, Torts, 381. "It is not necessary that a magistrate or board should act formally as a court, or that they should be usually so denominated or considered. If they are bound to notify and hear parties, and can only decide after weighing and considering such evidence and arguments as the parties choose to lay before them, their action is judicial." Sanborn v. Fellows, 22 N. H. 473, 488, 489. "The selectmen or assessors shall, on the first Monday of April in each year, give public notice of the times and places where they will be in session for the purpose * * * of hearing all parties in regard to their liability to taxation." Gen. Laws, c. 55, § 6. In Kansas it has been held that an ascertainment of the value of property is an incident of the legislative power of taxation; that the legislature may assess a tax upon an appraisal made by themselves; that an appraisal made by a certain board of assessors could be annulled by legislative action; that as the legislature cannot open a judicial decision, and give a new trial, the assessors' appraisal was not such a decision; that the power of determining the value of property for the purpose of taxation, being legislative, cannot be judicial. Auditor v. Railroad Co., 6 Kan. 500. The valuation made by these defendants was judicial administration of a general statute of taxation; and being judicial, it was not legislative. Cooley, Tax'n, 409, 410. "Where a tax is levied on property not specifically, but according to its value to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain, * * * the officers, in estimating the value, act judicially." Hagar v. Reclamation Dist., 111 U. S. 701, 710, 4 Sup. Ct. Rep. 663. "The abatement of a tax by selectmen is a judicial act." Melvin v. Weare, 56 N. H. 436, 439. With some possible exceptions not affecting this case, questions of abatement are questions of assessment. Judicially determined in this court on abatement appeals, they are judicially determined by the decisions appealed from. Though not entitled to jury trial,—the case being one in which it "was otherwise used and practiced" before the adoption of the constitution, (Cocheco Co. v. Strafford, 51 N. H. 455, 458,)...