Flack v. Byse Agency

• Decision Date: 08 November 1950
• Citation: 76 A.2d 788,96 N.H. 335
• Parties: FLACK v. BYSE AGENCY, Inc.
• Court: New Hampshire Supreme Court

Page 788

76 A.2d 788

96 N.H. 335

FLACK v.BYSE AGENCY, Inc.

Supreme Court of New Hampshire.

Nov. 8, 1950.

F. A. Normandin, City Solicitor, Laconia (by brief and orally), for plaintiff.

Nighswander & Lord and Hugh H. Bownes, all of Laconia, for defendant.

DUNCAN, Justice.

The plaintiff asserts a right to relief because the defendant by its attachment has prevented him from enforcing a lien to secure payment of the taxes previously assessed against the owner of the attached goods.In our opinion no lien upon the goods arose, and the transferred question, as applied to the facts of this case, is answered in the affirmative.By statutory provision the plaintiff was authorized to distrain the goods and chattels of the defendant, upon its neglect to pay the taxes assessed against it at any time after fourteen days' notice of the tax and before one year from October first following the assessment.R.L. c. 80, §§ 4-6.Section 17 of c. 80, R.L., provides that the real estate of every corporation shall be holden for 'all taxes' assessed against the corporation, and for all taxes upon the real estate; and that 'all such liens' shall continue until a year from October first following the assessment.The statutes contain no comparable provision creating a lien upon personal property, or providing that it shall 'be holden' for taxes.The law is well settled that taxes are not a lien unless made so by statute.Fuller v. Day, 103 Mass. 481;Thompson v. Henderson, 155 Md. 665, 142 A. 525;Broeck v. Mayor, etc., of Jersey City, 44 N.J.L. 156;City of Richmond v. Bird, 249 U.S. 174, 39 S.Ct. 186, 63 L.Ed. 543;6 McQuillin, Municipal Corporations (2d ed.) § 2563.SeeR. C. Stanhope, Inc., v. North Bergen Twp., 129 N.J.L. 513, 29 A.2d 845.It is likewise settled, as pointed out in Home Owners' Loan Corporation v. Mayor and City Council of Baltimore, 175 Md. 676, 682, 3 A.2d 747, 750, that 'a statute to create a tax lien must expressly provide for the lien, or the implication must be so plain as to be equivalent to positive language.'Cooley, Taxation (4th ed.) § 1230.

The procedure established for collection of taxes by distraint requires no implication of a lien.Distress for taxes 'legally applies and is limited to personal chattels only', Marshall v. Wadsworth, 64 N.H. 386, 387, 10 A. 685, 686, and 'is in its nature an execution.'Souhegan Nail, Cotton & Woolen Factory v. McConihe, 7 N.H. 309, 323.Distress may be made upon any goods and chattels of the taxpayer regardless of whether taxable or not excepting only such as are expressly exempt from distraint by R.L. c. 80, § 7.SeeJewell v. Swain, 57 N.H. 506.Since the goods upon which distress may be made are not required to be the goods upon which the taxes are assessed, no implication of a lien is to be drawn from the mere authority to distrain.Palmer v. Pettingill, 6 Idaho 346, 55 P. 653.

By Laws 1939, c. 40, § 1, the provisions of P.L. c. 66, § 6, authorizing distraint were amended to provide: 'Such distraint shall be valid only if begun within one year from October first following the assessment. * * *'R.L. c. 80, § 6.The plaintiff contends that the amendment is indicative of the existence of a lien.It...