Newell v. Town of Whitingham
| Decision Date | 23 January 1886 |
| Citation | 2 A. 172,58 Vt. 341 |
| Parties | CHESTER R. NEWELL v. TOWN OF WHITINGHAM |
| Court | Vermont Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Assumpsit. Plea, general issue with notice. Trial by jury, March Term, 1884, Windham County, ROWELL, J., presiding. Judgment for defendant.
The court pro forma directed a verdict for the defendant, that the question might be settled by the Supreme Court. But in doing this, the court stated: "We think that there is no ground for saying that Mr. Newell acted in this matter otherwise than in the utmost good faith and honesty, and that he really and honestly entertained the doubts and scruples that he said he did." The words "to my best knowledge and belief" were inserted in the oath just after the words "taxable property." The required oath was: The collector sold the plaintiff's property to satisfy the tax; and this action was brought to recover for the same. The other facts are sufficiently stated in the opinion of the court, and in the dissenting opinion of Ross, J.
Affirmed.
C. B. & C. F. Eddy and H. N. Hix, for the plaintiff.
In every essential particular, the oath tendered was all the act required. The plaintiff had a right to propose the form of the oath which he would take, if the same was thus binding upon him. 1 Greenl. Ev. 434; 1 Swift Dig. 739; 1 Stark Ev. 20. This act, like all others, must have a reasonable construction. The object of the statute is: first, to provide revenue; second, to secure the citizen against injustice. It was not intended to confer upon listers lawful power to inflict upon a tax payer inequality and injustice, for no other reason than that he has been honest and exactly truthful. The case shows that the plaintiff was in honest and conscientious doubt as to whether he had a taxable interest in some wool and cattle, or in what might be due him ultimately in respect to them. It is not a mere formula of words that constitutes the law; its substance, the true rule of action prescribed, must be gathered from the object and spirit of the enactment, as well as the mere letter. Holland v. Osgood, 8 Vt. 280. Not every verbal variance, either in the omission or addition of words, will vitiate. Shrewsbury v. Mount Holley, 2 Vt. 220; State v. Bartlett, 11 Id. 650; Blodgett v. Holbrook, 39 Id. 341; Ayers v. Moulton, 51 Id. 115; Charlestown v. Comrs. 1 Allen, 199; Lanesborough v. Comrs. 131 Mass. 424; Tonnele v. Hall, 4 N.Y. 140; Walker v. Cochran, 8 N.H. 166; Leach v. Blakely, 34 Vt. 134; Fairbanks v. Kittredge, 24 Id. 13.
J. Barrett, for the defendant.
The plaintiff was subject to taxation; hence, if he can recover, it is because the tax was unlawful. If the listers accepted a different inventory than was provided by law, they were liable to forfeit $ 200. Sec. 14 of the Act of 1880. It could not be unlawful for them to stand on the explicit requirement of the statute. Unless the statute required the listers to accept the oath, they had no authority to accept it. It is not the lawful function of this court to change the law of 1880, in respect to the oath. The language of the statute being explicit and plain, without ambiguity as to its meaning, there is no subject or occasion for construction. The current of authority, at the present day, is in favor of reading statutes according to the material and most obvious import of the language, without resorting to subtle and forced constructions for the purpose of either limiting or extending their operation. Courts cannot correct what they deem either excesses or omissions in legislation. Waller v. Harris, 20 Wend. 555; Sedg. Stat. L. 243. The omission to make and deliver the proper inventory was wilful. Smith v. Wilcox, 47 Vt. 537. Again, the authorities are uniform in marking the distinction between ministerial and judicial functions of listers. Day v. Peasley, 54 Vt. 312; Wilson v. Marsh, 34 Vt. 359; Fuller v. Gould, 20 Vt. 649. The plaintiff's action compelled the listers to act judicially and construe the statute. The good faith with which the plaintiff omitted to make the prescribed oath does not avoid the consequences visited by the statute. Did the listers do anything unlawful? They obeyed the statute in every particular. The plaintiff must show the illegality of the tax. 44 Vt. 235; 38 Id. 221; 25 Id. 20; Cooley Tax. 566; Burr. Tax. 441.
OPINION
The listers of the defendant town were satisfied with the inventory of the plaintiff as filled out and tendered by him, with the exception of the interlineation in the oath, and for this reason only refused to receive it and administer the oath. The interlineation was in the words, "to my best knowledge and belief." By sec. 4 of No. 78, of the Acts of 1880, it was provided as follows: "Said inventories shall also contain the following oath," then followed the form just as printed in the blank inventory, and in which said interlineation was made by the plaintiff. Sec. 14 of said act was this: "If a lister accepts the inventory of a person not made out and sworn to as provided in this act, * * * he shall, for each inventory so received, * * * forfeit to the town or city where he resides the sum of two hundred dollars; and any tax-payer in such town, in the name of the town, may sue, and recover such penalty for the benefit of such town."
The plaintiff insists that the interlined oath was a substantial if not literal compliance with the requirements of the statute and that is sufficient in the construction of an act of this kind.
The test is the legislative intent, to be deduced from the terms of the enactment as a whole. We think it is plain that the intention was to confer upon the listers the right to exact the oath prescribed. This is indicated by the provisions quoted and by others. The listers could not take up the inventories before April 1; and were limited to April 25 to complete and arrange in alphabetical order and lodge the personal lists of all the tax-payers in the clerk's office. Sec. 15. The variation of the form of the oath under a claim that it did not vary the substance or legal effect, would present practical difficulties to the listers that could not have been contemplated, in view of the liability and limitation upon them. The plaintiff's claim seems to come to this: Though in terms subject to a penalty for any deviation from the statute, yet the listers must stop and deliberate as a tribunal upon every qualification of oath offered, and decide whether it is a substantial variation or not; that they are liable to prosecution for the penalty if they decide in favor of the tax-payer; and are liable to suit against themselves or the town for the illegality of the tax, if they decide against the tax-payer; and this in respect to a statutory provision concededly not doubtful or uncertain in terms. Nor is this all. No one claims that the listers should receive an oath differing in substance or legal effect from the statutory form. Then why should the listers not be protected in requiring that form? Why should the legislature have intended that they should be troubled with the fanciful notions of of every tax-payer in respect to form, especially when every deviation from the prescribed form would involve the difficult question as to whether it was matter of substance or form? Where the legislative enactment is plain and certain in terms, and nothing in substance is to be gained by a deviation, and substantial convenience and advantage, without injustice, is subserved by literal compliance, we think such compliance was intended. It would seem to be novel to predicate legal error upon the action of listers for adhering to the plain provisions of the statute in the discharge of official duty, and declare a tax unlawful, where their right to proceed under the statute is conceded.
The view taken renders is unnecessary to pass on the question whether the oath tendered varied in substance from the oath prescribed.
The refusal of the plaintiff to make, swear to, and deliver an inventory as required, though conscientious, was intentional, therefore wilful in the sense in which that term is used in sec. 10. It being wilful the duty of the listers to "ascertain and double" followed as provided in said section. The list and tax were therefore lawful; and the pro forma judgment of the County Court is affirmed.
Dissenting opinion by
The Act of 1880 is entitled "An act to equalize taxation." It seeks to accomplish this purpose by requiring every tax-payer to make in writing, and give in his list, or inventory of taxable property, under oath, and to therein furnish such information as will enable the listers to ascertain just what taxable property he owns, and what debts of all kinds are due to, and owing by him; by requiring the secretary of state to make and publish inventories, with suitable interrogatories on all subjects necessary to give the listers full information in regard to his taxable property, to which is added a prescribed form of oath to be subscribed and taken by the tax-payer; by requiring the listers to appraise...
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