Richford Sav. Bank & Trust Co. v. Thomas, 550.
| Decision Date | 07 January 1941 |
| Docket Number | No. 550.,550. |
| Citation | 17 A.2d 239 |
| Court | Vermont Supreme Court |
| Parties | RICHFORD SAV. BANK & TRUST CO. v. THOMAS et al. |
Exceptions from Chancery Court, Franklin County; Stephen S. Cushing, Chancellor.
Suit in equity by the Richford Savings Bank & Trust Company against Leslie B. Thomas and others to enjoin a sale of realty for taxes. Decree of dismissal, and plaintiff brings exceptions.
Reversed, and defendants enjoined from selling realty until after sale of owner's available personalty.
Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
Shangraw & Brown, of Richford, for plaintiff.
McFeeters & Kissane, of St. Albans, for defendants.
This is a proceeding to enjoin the sale of certain real estate, known as the Quincy House property, located within the defendant municipalities, for taxes assessed thereon during the years 1930 to 1933, inclusive, and 1935 to 1937, inclusive, while the title thereto stood in the names of Robert G. Gilpin and Beatrice E. Gilpin, husband and wife. At the time this suit was commenced the plaintiff held a mortgage upon the property, but it has since taken a quitclaim deed of the same from the Gilpins. The defendant Thomas is the tax collector of each of the defendant municipalities. The case is here upon an appeal from a decree dismissing the bill of complaint.
The questions raised and briefed, in the order in which we shall consider them, are:
1. That the grand lists and quadrennial appraisals are defective because made by listers who were not elected by ballot and who failed to subscribe and file their oaths of office.
2. That the lists of the Gilpins are defective because their inventories, which included personal property, were not signed and sworn to by Mrs. Gilpin.
3. That the town tax bills are defective because made by selectmen who were not elected by ballot and who failed to subscribe and file their oaths of office.
4. That for the foregoing reasons the tax warrants issued by the treasurers of the defendant municipalities are illegal and void.
5. That No. 14 of the Acts of 1939 is unconstitutional.
6. That the collector failed to arrest the Gilpins or distrain their personal property, as required by law, before extending his warrant upon real estate.
7. That the notice of the tax sale was defective.
In view of the recent case of Smith & Son, Inc., v. Town of Hartford, 109 Vt. 326, 196 A. 281, where, as here, the listers were chosen by voting viva voce to instruct a named person to cast one ballot for the candidate for the office, and by such person casting such ballot, it is clear that, in the absence of a validating act, the collection of the taxes here in question cannot be enforced because the listers were not elected by the kind of ballot contemplated by P.L. 3432. And for the same reason the collection of the town taxes assessed upon the grand list by the selectmen, who were chosen in the same manner, cannot be enforced, because the same statute requires that they also be elected by ballot.
At the next session of the General Assembly after the decision of that case, No. 14 of the Acts of 1939 was enacted. Since the enactment of this act the validity of the taxes here in question depends upon its construction and effect. Section 1 provides: "The grand lists of all towns and municipal corporations for the years 1926 to 1938, both inclusive, are hereby declared to be legal and valid, and all taxes voted and assessed thereon are hereby declared to be legal and valid, unless a person questions the same as provided by section 6, and the failure of the listers to lodge said grand lists in the town clerk's offices of the various towns within the time and agreeably to the provisions prescribed by law, or the fact that said listers were improperly elected, or the fact that any other step or act required by law to be done and performed in the making of said grand lists or the assessment of any and all taxes thereon was omitted to be done, shall in no manner affect the validity or legality of said grand lists, or the taxes assessed or predicated thereon."
Section 2 legalizes quadrennial appraisals. Sections 3 and 4 provide:
Paragraph A of section 6 provides that within thirty days after the act becomes effective a person may appeal to the board of civil authority relative to the quadrennial appraisal in certain circumstances, and that a person who has not been notified as required by law with regard to any act of the listers as to the making, completing or filing of a grand list for the years specified, may also appeal. Paragraphs B and C of this section provide:
We have a number of cases upon the power of the Legislature to validate quadrennial appraisals and grand lists, but we need refer to only Grout v. Johnson, 73 Vt. 268, 50 A. 1059, 1060, where some of the other cases are cited. This case quotes the following rule laid down in Cooley's Constitutional Limitations:
"If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by prior statute, then it is not beyond the power of the legislature to dispense with it by a subsequent statute."
It appears from this case and the others cited therein, that if the listers by unauthorized acts render a list invalid, or if the listers had failed to subscribe the required oath, or if the quadrennial appraisal was not deposited on a certain day, the Legislature had power to validate the grand list or quadrennial appraisal, because of the prerogative of the Legislature to establish a system of taxation and to direct towns in respect to the manner of making such appraisals and grand lists as the basis of taxation, which it has the right to change, unless some right of the taxpayer has become vested, and if an adequate right of appeal is granted by the special act the right of the taxpayer does not become vested. It also appears from this case that such a statute by validating a grand list also validates the taxes assessed upon such grand list before it was validated. It follows that such a statute by validating the taxes assessed upon the grand list also validates a tax warrant issued before such taxes were validated. See Smith v. Hard, 59 Vt. 13, 18, 8 A. 317.
Under Judge Cooley's rule, because the Legislature might have authorized that the listers and selectmen should be elected in the manner in which they were here chosen, and need not have required oaths of office from them, and might have dispensed with inventories to be signed by taxpayers, a special act can validate tax proceedings in which the general law was not complied with in these respects.
No question is now made but that the 1939 s...
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