Harrington v. Glidden

• Decision Date: 04 September 1901
• Citation: 179 Mass. 486,61 N.E. 54
• Parties: HARRINGTON v. GLIDDEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 486

61 N.E. 54

HARRINGTON v. GLIDDEN.

Supreme Judicial Court of Massachusetts, Middlesex.

September 4, 1901

COUNSEL

Geo F. Richardson and F. W. Qua, for plaintiff.

Shepard Stebbins & Storer and Burke & Corbett, for defendant.

OPINION

HAMMOND J.

In this action the plaintiff, as collector, seeks to recover a tax assessed upon the defendant, as trustee. It is contended by the defendant that, even if he was a trustee, such was the nature and location of the property, and his relation to it that he was not taxable as such. The first question is whether this ground of the defense is open to the defendant in this action. The assessment and collection of taxes is regulated by statute. The assessors are public officers, and while their duties are of a quasi judicial nature, their jurisdiction is limited, based sometimes upon the residence of the person assessed, or of some other person interested in the property, and sometimes upon the situation of the property. Without reciting in detail the statutes, it is sufficient to say that they provide that each person may bring in a sworn list of the personal property for which he in any capacity should be taxed, and this list is to be received by the assessors as true, except as to valuation, unless he, being required thereto by the assessors, refuses to answer on oath all necessary inquiries as to the nature and amount of his property. In case a person does not bring in a list, the assessors shall ascertain, as nearly as possible, his taxable property, and 'make an estimate thereof at its just value, according to their best information and belief,' and 'such estimate shall be conclusive,' except in certain cases not here material. Pub. St. c. 11, §§ 38-42. Any person aggrieved by an assessment may apply for an abatement to the assessors, and, by appeal from their decision, to the county commissioners or superior court, and on questions of law may reach this court; but no person shall have an abatement unless he files a list, as above provided. Id. §§ 69-72; St. 1890, c. 127. This plain, adequate, and complete remedy for the correction of errors, whether of law or fact, is the only one provided by our statutes; and when the assessors are acting within their jurisdiction, it must be regarded as exclusive, in accordance with the well-known rule that 'when a new right is created by statute, which at the same time provides a remedy for any infringement of it, that remedy must be pursued.' Osborne v. Danvers, 6 Pick. 98, 99. But when the assessors are acting outside their jurisdiction, their acts are absolutely void. Where, for instance, the tax ordered is illegal because for a purpose not authorized by law, the assessment is void. The assessors have no jurisdiction. Bangs v. Snow, 1 Mass. 181; Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145. So where the assessment is upon a nonresident for personal property, claimed, by reason of its location in the town where the assessment is made, to be taxable there, if it appears that the nonresident had no personal property assessable there, the tax is wholly void, even if he had taxable real estate there. The reason is that, the person assessed not being resident in the town where the assessment is made, and so not within jurisdiction of the assessors, their right to assess him, so far as respects personal property, depends upon whether he has assessable personal property in the town. Unless he has such property there, their acts are void for want of jurisdiction. Preston v. City of Boston, 12 Pick. 7, a leading case, affords a good illustration of the application of this principle. The plaintiff being domiciled in Medford, and having taxable personal estate, but having in Boston only real estate, was taxed in the latter place for both real and personal estate. He paid the taxes, and in an action to recover back the money it was held that, while the real estate tax was valid, the personal estate tax was invalid, and he recovered that back. The ground of the decision as to the personal property was that the plaintiff was not an inhabitant of Boston, and so not liable to be taxed there at all on his personal property. As to that the assessors had no jurisdiction. In giving the opinion, Shaw, C.J., said: 'One not liable not domiciled--is not within the jurisdiction of the assessors any more than a stranger from another state who should happen to be lodging at a hotel when the tax was assessed. The whole proceeding, therefore, in regard to him was without authority ab initio.' See, also, Sumner v. Dorchester Parish, 4 Pick. 361; Inglee v. Bosworth, 5 Pick. 498, 16 Am. Dec. 419. Where, however, there is personal property of a nonresident which is taxable in the town where it is situated, the assessors of that town have jurisdiction, and consequently the only remedy of the person aggrieved is by abatement. Little v. Greenleaf, 7 Mass. 236; Gray v. Kettell, 12 Mass. 161. Again, where a corporation owns real and personal estate, and is taxable for the real, and not for the personal, estate, a tax upon the personal estate is absolutely void. Manufacturing Co. v. Amesbury, 17 Mass. 461; Boston Water Power Co. v. City of Boston, 9 Metc. 199; Salem Iron Co. v. Inhabitants of Danvers, 10 Mass. 514,--the ground of the decision in these cases being that the corporation is not an inhabitant of the town for purposes of taxation. And the same principle is applied where the assessors undertake to assess a tax in excess of what is called for or is allowed by law. Joyner v. Inhabitants of Egremont School Dist. No. 3, 3 Cush. 567; Cone v. Forrest, 126 Mass. 98. These and similar cases all proceed upon the principle that an assessment made by assessors who have no jurisdiction is not the assessment authorized by statute. It is no assessment at all, and is absolutely void. As it is not the statutory proceeding, the statutory remedy is not exclusive. Such an assessment, therefore, can be attacked collaterally in an action of tort against the assessors, where such an action will lie, or in an action against the town to recover back the money paid, or in defense to an action by the collector. These general remedies are not for those who are aggrieved by assessors acting within their jurisdiction, but are allowable to redress wrongs inflicted by persons who pretend to be assessors, but who are not such, because acting without jurisdiction. Where, however, the tax is for a legal purpose, and the assessors have jurisdiction, whether it is based upon the fact that the person assessed be an inhabitant of the town where the assessment is made, or upon the situation of the property, or any other jurisdictional fact shown to exist, and they proceed essentially in accordance with the statutes, their decision as to the nature and amount of the taxable property of a person who has not brought in a list is valid. It cannot be attacked in any collateral proceeding, but must stand until changed in a proceeding under the statute for abatement. There are sound and obvious reasons for this rule, which are set forth at some length in Lincoln v. City of Worcester, 8 Cush. 55, 65, 66. Among the numerous cases where the doctrines above stated have been applied by this court, see, in addition to those already cited, Bates v. City of Boston, 5 Cush. 93; Howe v. Same, 7 Cush. 273; Bourne v. Same, 2 Gray, 494; Ingram v. Cowles, 150 Mass. 155, 23 N.E. 48; Carleton v. Ashburnham, 102 Mass. 348.

The defendant in the case at bar was an inhabitant of Lowell, and he had taxable personal property there. The...