Melvin v. Weare

• Decision Date: 21 March 1876
• Citation: 56 N.H. 436
• Parties: Melvin v. Weare.
• Court: New Hampshire Supreme Court

56 N.H. 436

Melvin v. Weare.

Supreme Court of New Hampshire

March 21, 1876

Abatement of taxes---Returning invoice.

When a person renders a true account of the polls and ratable estate for which he is liable to be taxed, upon the personal application of the selectmen, and the same is received by them without objection, he will not be required to render a second account by reason of a public notice by the selectmen subsequently posted, of the time and place appointed by them to receive an account of the polls and taxable property in their town.

When an application is made to the selectmen for an abatement of a tax, the applicant is not bound to show cause for such abatement until they afford him an opportunity to be heard.

If the selectmen neglect unreasonably to afford such opportunity the applicant may apply by petition to the circuit court for such abatement.

When application by petition is made to the circuit court for the abatement of a tax, without application being first made to the selectmen, and no objection is taken by the town until the report of the committee to whom such petition is referred by the court comes in, whether the objection will not be regarded as waived, quœre

From HILLSBOROUGH Circuit Court

PETITION for the abatement of taxes, entered at September term, 1874.

On April 1, 1874, and for a week following, the selectmen of Weare, from day to day, called upon the property-holders in town to ascertain facts from which to make their inventory. April 2 they called upon Melvin to ascertain from him what personal and real estate he owned

in town liable to be taxed. There was nothing said about his making a statement under oath relative to his property liable to be taxed. He, upon inquiry, said that his real estate was the same as it was the year before, and it was assessed upon the same valuation. April 13 the selectmen posted a notice at five public places in town, of which the following is a true copy:

"To the inhabitants of the town of Weare, and all persons liable to be assessed therein:

"The undersigned will receive an account of the polls and taxable property in said town, at the town-clerk's office in said town, on the twentieth day of April inst., from ten o'clock in the forenoon to three o'clock in the afternoon, at which time and place such account is required to be produced.

"Witness our hands at said Weare, this thirteenth day of April, 1874.

A. H. WOOD,

S. H. DOW,

Selectmen of Weare."

The selectmen were in session agreeably to said notice, and for the day or two succeeding. Melvin did not appear, nor any one in his behalf, on either of said days. The first notice of dissatisfaction on the part of Melvin was an application for abatement by his attorneys. An application was afterwards made to the court, and referred to a committee, which application and report are made a part of this case.

For the purposes of this case the foregoing facts were agreed to.

The questions of law arising were transferred to the superior court by FOSTER, C. J.

Cross & Burnham, for the plaintiff. Morrison & Hiland, for the defendants

SMITH J

The defendants object that the plaintiff is not entitled to be heard upon this petition, because he has not complied with the requirements of ch. 51, sec. 4, of the General Statutes. The plaintiff insists that this objection comes too late. No question is made that the plaintiff applied to the selectmen to abate the excessive tax of which he complains, and that this petition was seasonably filed in court because of the neglect of the selectmen to grant the relief prayed for. No objection was made, such as is now raised, when the petition was referred to a committee, nor at the hearing before the committee. All the facts were known to the defendants; and, if the defect were such that it could have been obviated if the objection had been taken earlier, it would be unjust to allow them to compel the plaintiff to incur the expense and trouble of a hearing, and take their chance of a favorable result, and, upon the coming in of the report, raise an objection which ought to have been raised in the outset. Wentworth v. Farmington, 51 N.H. 134, and cases cited. But the defect, which it is claimed exists here, is one that could not have been obviated if this objection had

been taken earlier. There is no provision of the statute which allows the plaintiff to maintain this petition, unless he has complied with the requirements of the above-named section. But we have no occasion to inquire whether the objection is one that can be raised at this stage of the proceedings, or whether the defendants waived the objection by not making it sooner, because it appears the plaintiff did comply substantially with all he was required to do.

The statute above referred to---Gen. Stats., ch. 51, sec. 4---requires every person liable to be taxed to exhibit to the selectmen, at the time and place appointed by them for receiving an account of the polls and taxable property in their town, or upon personal application to him by the selectmen, or either of them, a true account of the polls and estate for which he is there liable, either in his own right or otherwise, and on oath if required.

By sections 10 and 11 of chapter 53, the selectmen, for good cause shown, may abate any tax assessed by them or their predecessors. If they neglect or refuse so to abate, any person aggrieved, who has complied with the requirements of sec. 4, ch. 51, within nine months after notice of such tax and not afterward, may apply by petition to the supreme court in the county at a trial term (now circuit court), who shall make such order thereon as justice requires.

It seems the selectmen of Weare called upon the plaintiff "to ascertain from him what personal and real etate he owned in said town liable to be taxed." Nothing was said about his making a statement under oath. We may assume that the account he gave of his personal estate was correct, as no question is made about it. "He, upon inquiry, said that his real estate was the same as it was the year before." His answer was equivalent to saying he owned the same real estate for which he was taxed the year previous. What this was would appear upon the records of the town containing the invoice and assessment for 1873. If the selectmen had objected, perhaps a verbal account would be held insufficient. But no objection was made---at least, none appears. He was accordingly assessed upon the same real estate that he was assessed for in 1873. The defendants do not claim that he was taxable for any other, or that the account he rendered was false, or in any respect incorrect. Nor does the plaintiff claim that he was taxed for any property for...