Kaemmerling v. State
| Decision Date | 02 December 1924 |
| Parties | KAEMMERLING v. STATE. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Coos County; Marble, Judge.
Petition by Sarah Maude Kaemmerling, executrix, against the State, for abatement of legacy taxes. Petition denied by probate court, and, on petitioner's appeal to the superior court, the case was transferred. Case discharged.
Appeal from probate court decree denying a petition to abate legacy taxes. The superior court (Marble, J.) transferred without ruling (a) questions relative to the legality of the tax; and (b) the question whether, in the event of abatement, the amount carries interest from the time the tax was paid.
Shurtleff & Oakes, of Lancaster, for the plaintiff.
Joseph S. Matthews, Asst. Atty. Gen., for the State.
The state conceding that under Williams v. State, 81 N. H. —, 125 A. 661, an abatement of the entire tax should be decreed, the only question for consideration is whether interest from the time the tax was paid should be added to the amount to be abated.
Article 55 (56) of part 2 of the Constitution, prohibiting payments from the state treasury except in accordance with legislative act or resolve, as a practical declaration that the state cannot be sued without its consent, makes it evident that it is not liable for interest on its obligations without such consent. The obligation of itself does not imply or carry with it an additional obligation to pay interest on its amount.
"An obligation of the state to pay interest, whether as interest or as damages, on any debt overdue, cannot arise except by the consent and contract of the state, manifested by statute, or in a form authorized by statute." United States v. North Carolina, 136 U. S. 211, 221, 10 S. Ct. 920, 924 (34 L. Ed. 336).
In reason, no greater right to recover interest on taxes paid the state and later abated than on other obligations of the state is apparent. Whether the claim for interest is based on the creditor's detention from the use of his money, or on the debtor's enjoyment of its use, no distinction between interest on such payments and on other obligations of the state can be made in this respect.
Also, since a taxpayer's right to a refund of taxes wrongfully collected can be enforced only under the statutory remedy therefor, and subject to its conditions and restrictions (Rowe v. Hampton, 75 N. H. 479, 76 A. 250, and cases cited; Bartlett v. New Boston, 77 N. H. 476, 93 A. 796, Ann. Cas. 1917B, 777), he is entitled to interest on such refund only as the statute authorizes it.
Examination of the statute upon which repayment of the tax is here sought shows that neither in terms nor by implication is interest to be figured on repayments. By the statute, on a final decree ordering repayment of any portion of the tax, "the state treasurer shall repay the amount adjudged to have been illegally exacted without any further act or resolve making appropriation therefor."
In terms silent as to interest, it does not imply interest either from its other sections or from other tax legislation. On the contrary, the intention thereby disclosed is in denial of interest under it. By subsec. 2 of section 1 of the 1911 act, contingent and discretionary remainders are subject to the legacy tax upon the provision that if they eventually go to exempted persons, on the granting of a petition for abatement, "the state treasurer shall repay the amount adjudged to have been illegally exacted as provided in said section 12 (above cited) with interest thereon at three per cent. per annum from the date of the payment of the tax."
Thus, in the same act, in one situation interest at a special rate of one-half the normal allowance is to be added to the amount abated, while in the situation under consideration all reference to interest is lacking. The use of identical language for the repayment of "the amount adjudged to have been illegally exacted" in both sections, with allowance of interest added in one and no reference to it made in the other, adds to the force of the conclusion that it was not intended where not mentioned.
Comparison of the legacy and succession tax law with other tax legislation shows an important change in its working scheme, which not only emphasizes the improbability of a legislative intent to allow interest here, but discloses the purpose to exclude rather than include it.
By the general and other taxation laws (P. S. c. 59, § 8;...
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