Bretton Woods Co. v. Carroll

• Decision Date: 07 October 1930
• Citation: 151 A. 705
• Parties: BRETTON WOODS CO. v. CARROLL.
• Court: New Hampshire Supreme Court

151 A. 705

BRETTON WOODS CO.

v. CARROLL.

Supreme Court of New Hampshire. Coos.

Oct. 7, 1930.

Exceptions from Superior Court, Coos County; Oakes, Judge.

Tax abatement proceeding by the Bretton Woods Company against the Selectmen of Carroll. From the refusal of the Selectmen to abate taxes assessed against it, plaintiff appealed. Appeal dismissed, and plaintiff excepts.

Exception overruled.

Appeal from the refusal of the selectmen of Carroll to abate taxes assessed against the plaintiff, in 1929. The ground relied upon by the plaintiff is that certain appropriations voted by the town are for unauthorized purposes.

Before this proceeding was begun, the plaintiff brought a bill in equity seeking to restrain the assessment of the tax, for the reasons relied on herein. A trial was had and a final decree dismissing the bill was entered.

The court (Oakes, J.) dismissed this appeal, and the plaintiff excepted.

Shurtleff & Hinkley and I. A. Hinkley, all of Lancaster, for plaintiff.

Edgar M. Bowker, of Whitefield, for defendant.

PEASLEE, C. J.

The nature and extent of the remedies afforded to taxpayers for the correction of errors in the assessment of taxes has been much discussed in the cases, and varying and inconsistent conclusions have been reached. The decision in Edes v. Boardman, 58 N. H. 580, established the rule, which has ever since been followed, that, as to "any error correctible on appeal" (page 594 of 58 N. H.), the remedy by a petition for abatement is exclusive. It did not consider the question of what errors are so correctible.

Cases before Edes v. Boardman, supra, held that one who has paid a tax illegally assessed may recover it back from the town in an action of assumpit. Id. 591. That decision established for this jurisdiction the rule that the remedy by petition for abatement abolished the common-law action to recover back taxes paid. But it did more than that. It also elaborated the long-recognized theory that in abatement proceedings only equitable relief could be afforded. While this second proposition has been restated in several later cases (Carpenter v. Dalton, 58 N. H. 615; Perley v. Dolloff, 60 N. H. 504; Fowler v Springfield, 64 N. H. 108, 5 A. 770; Connecticut, etc., Co. v. Monroe, 71 N. H. 473, 52 A. 940), it has been overlooked in others, where relief in other forms of proceeding has been denied upon the ground that legal, but inequitable, relief could be had on a petition for abatement.

The instant case presents an issue as to the validity of votes of the town making appropriations, and the enforceability of an assessment made in pursuance of such votes. May the individual taxpayer, in his individual appeal, obtain individual relief because of such a defect? There are two cases decided since Edes v. Boardman, supra, which are based upon the idea that he can.

Rowe v. Hampton, 75 N, H. 479, 76 A. 250, was a bill in equity to restrain the collection of a tax assessed in 1909, to pay for appropriations voted and laid out in 1908. The bill was dismissed upon the erroneous theory that the validity of the appropriation could be successfully attacked upon a petition for abatement, and also for the reason that equity will not interfere in such a situation to restrain the collection of a tax. Perley v. Dolloff, 60 N. H. 504, is cited to sustain both propositions. It is authority for the second ground for dismissal, but not for the first; for, although it states that the petitioner would have a remedy in abatement proceedings, it goes on to point out that such remedy would be of no avail because only an equitable order could be made, and relief of the petitioner at the expense of others, already equally wronged, would be inequitable.

The order made in Rowe v. Hampton, supra, is sustainable on the second ground stated; but the first ground appears to us to be unsound, although supported by a prior decision. School District v. Carr, 63 N. H. 201.

In the case last cited, the application of individual taxpayers to intervene, in a dispute over the effect of defective district votes upon the duty of the selectmen to assess the district tax, was denied in the following terms: "The taxpayers have an ample and appropriate remedy for the correction of errors of law or of fact by an appeal from the assessment (Edes v. Boardman, supra), and there is no occasion or necessity for allowing them in this proceeding to obstruct the course of public education, suspend the legitimate business of the school-district, and defeat the purposes for which it was created, by delaying the assessment and withholding needed funds until all questions affecting the legality of the votes can be judicially determined." Id., page 206 of 63 N. H. This argument leaves wholly out of consideration what might happen when the suggested appeals from the assessment were taken. Those who appeal would obtain piecemeal relief. If all appealed, the district would be impoverished as much as by the direct method of correcting the error at the outset, before it had run its course of assessment, collection, and expenditure of the illegal tax.

In Keene v. County, 79 N. H. 198, page 200, 106 A. 486, 487, it was stated arguendo that, where county taxes had been improperly apportioned among the towns, the individual taxpayers "had a sufficient remedy by appeal." But later in the same paragraph, when speaking of other corrective measures, the conclusive negation of such remedy by appeal was given. "It will not be granted when the effect would be, not to cure the wrong, but merely to transfer the injury to other parties." Id.

Abatement proceedings cannot afford any real and equal remedy for such errors. Either they would relieve the petitioning taxpayers at the expense of those who did not apply for an abatement; or, if all applied, it would not affect the improper expenditure, but merely leave a deficit in the municipal treasury, which would have to be made good by later taxation. It was for these reasons that it was decided in Perley v. Dolloff, 60 N. H. 504, that a complaint that the assessment was illegal as a whole was no ground for granting a petition for abatement. Abatements are granted "upon strictly equitable principles only," and "equity requires...