Richford Savings Bank & Trust Company v. Thomas

• Decision Date: 07 January 1941
• Parties: RICHFORD SAVINGS BANK & TRUST COMPANY v. LESLIE B. THOMAS ET AL
• Court: Vermont Supreme Court

17 A.2d 239

111 Vt. 393

RICHFORD SAVINGS BANK & TRUST COMPANY v. LESLIE B. THOMAS ET AL

Supreme Court of Vermont

January 7, 1941

November Term, 1940.

Tax Collection.---1. Election of Lister---P. L. 3432.---2. Election of Selectman---P. L. 3432.---3. Validation of Grand Lists and Quadrennial Appraisals.---4. Right of Appeal Bars Vesting of Rights in Tax Procedure.---5. Validating Grand List Validates Tax and Warrant.---6. Validating Acts which Omitted Unnecessary Requirements.---7. Selectmen's Duty re Tax Bills---P. L. 3484.---8. Richford Village Trustees' Duty re Tax Bills---No. 195 of Acts of 1886.---9. Prudential Commit- tee's Duty re Tax Bills---P. L. 4382.---10. Harmonizing Contemporaneous Legislative Acts.---11. Statutory Construction to Avoid Inconsistency.---12. Prepayment of Tax as Prerequisite to Questioning Validity.---13. Paragraph B of Section 6 of No. 14 of Acts of 1939 Constitutional.---14. Arrest of Delinquent Taxpayer not Required before Levy on Real Estate---P. L. 805 Amended by No. 25 of Acts of 1939.---15. Taxing Statute not Extended by Implication and Doubts in Favor of Taxpayer.---16. Delinquent Taxpayer's Personal Property Need not be Sufficient to Satisfy a Tax---P. L. 805 Amended by No. 25 of Acts of 1939.---17. Tax Sale of Personal Property before Real Estate.---18. Requirements of Tax Statute Need Strict Compliance.---19. Enjoining Illegal Tax Sale.

1. P L. 3432 requires election of a lister by ballot and does not permit one ballot being cast by a vive voce instruction.

2. P L. 3432 requires that selectman be elected by formal ballot.

3. The legislature has power to validate a grand list or quadrennial appraisal rendered invalid by unauthorized acts of listers or when the listers fail to subscribe a required oath or fail to deposit on a day certain.

4. If an adequate right of appeal concerning steps in the procedure of taxation is granted, the right of a tax payer does not become vested in a particular procedure.

5. Validating a grand list validates the taxes thereupon assessed and a tax warrant thereon issued.

6. When a legislature may allow acts to be done in a certain way, it may by special act validate proceedings which omitted other formalities.

7. P L. 3484 charges upon selectmen the duty of making out and delivering bills for town taxes.

8. Sec. 10 of No. 195 of the Acts of 1886 charges upon the Trustees of the Village of Richford the duty of making out and delivering village tax bills to the collector.

9. P. L. 4382 charges upon the prudential committee of a school district the duty of making out and delivering school district tax bills to the collector.

10. Different sections of the same legislative act taking effect at the same time should be harmonized if it can be done reasonably.

11. A statutory construction that creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act and will carry out the legislative intention.

12. A statute providing for the payment of a tax as a condition precedent to testing its validity is due process.

13. Paragraph B of Section 6 of No. 14 of the Acts of 1939 which provides that a tax-payer desiring because of special circumstances to question a quadrennial appraisal generally validated shall pay the tax under protest, give notice of claimed invalidity and sue to recover is not contrary to our Constitution or the due process provision.

14. P. L. 805 as amended by Section 1 of No. 25 of the Acts of 1939 does not require the arrest of a delinquent tax-payer before a levy on real estate.

15. A taxing statute is not to be extended by implication beyond the clear import of the language used and doubts are resolved in favor of the tax-payer.

16. P. L. 805 as amended by Section 1 of No. 25 of the Acts of 1939 can not be extended by implication to include the words "sufficient to satisfy the tax" as descriptive of a delinquent taxpayer's personal property.

17. When a tax collector can find any personal property of a delinquent tax-payer, he must first sell the same before extending his warrant upon real estate.

18. Requirements of a taxation statute must be strictly complied with.

19. A sale of real estate upon the levy of a tax warrant against a person who has personal property should be enjoined.

BILL IN CHANCERY by the plaintiff against Leslie B. Thomas, Collector of Taxes for the other defendants, Town of Enosburg, Village of Enosburg Falls and Enosburg Falls Graded School District to enjoin the sale of certain real estate for delinquent taxes assessed thereon. After defendants' demurrer was sustained the petitioner amended its bill of complaint and the defendants answered. Heard by Franklin County Court of Chancery, Cushing, Chancellor, at the March Term, 1940. Findings of fact and supplemental findings were made and decree was entered dismissing plaintiff's bill of complaint and dissolving restraining order.

Decree reversed, and it is ordered, adjudged and decreed that the defendants, and their representatives, be enjoined from levying upon and selling the so-called Quincy House Property upon their tax warrants against Robert G. Gilpin and Beatrice E. Gilpin for the years 1930 to 1933 inclusive and 1935 to 1937, inclusive, until such time as they have distrained and sold the available personal property of said Gilpins. Let the plaintiff recover its costs.

Shangraw & Brown for the plaintiff.

McFeeters & Kissane for the defendant.

Present: MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

SHERBURNE

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 quit-claim 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 et al., 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:

"Sec. 3. The selectmen of a town, or the prudential committee of an incorporated school or fire district, and other proper officers of a municipality, when legal tax bills have not previously been issued, or have been lost or destroyed, may prepare and issue new tax bills for any of the years specified in section 1 hereof, and said tax bills shall be legal and valid. Said tax bill shall state that it is issued under the authority of this act."

"Sec. 4. The selectmen or treasurer of a town or other officers authorized by law to issue warrants to a tax collector, when legal warrants have not previously been issued, or have been lost or destroyed, may prepare...