Smith & Son, Inc. v. MacAulay

• Decision Date: 13 January 1938
• Docket Number: No. 1265.,1265.
• Citation: 196 A. 281
• Court: Vermont Supreme Court
• Parties: SMITH & SON, Inc., v. MacAULAY et al.

196 A. 281

SMITH & SON, Inc.,

v. MacAULAY et al.

No. 1265.

Supreme Court of Vermont. Windsor.

Jan. 13, 1938.

Appeal in Chancery, Windsor County; Allen R. Sturtevant, Chancellor.

Suit by Smith & Son, Inc., against Angus MacAulay and the Town of Hartford to enjoin collection of taxes. From the decree, the plaintiff appeals.

Reversed and remanded, with directions.

Argued befor POWERS, C. J., and SLACK, MOULTON, SHERBURNE, and BUTTLES, JJ.

Fred B. Thomas, of Randolph, and Wilson, Carver, Davis & Keyser, of Barre, for appellant. William S. Pingree and Raymond Trainor, both of White River Junction, for appellee Town of Hartford.

POWERS, Chief Justice.

The plaintiff, a corporation, seeks to enjoin the defendants from collecting certain taxes assessed by the town of Hartford on the former's grand list in that town in the years 1933 and 1934.

It is insisted by the plaintiff that such taxes were illegally assessed because the quadrennial appraisal of 1930, which formed the basis of the real estate taxes here in question, was illegal, and because the grand lists of 1933 and 1934 were illegal, all for the reasons and defects hereinafter discussed.

The chancellor, before whom the case was tried below, found that the defendant MacAulay, who was elected first constable of the defendant town in 1934 and again in 1935, and who had begun proceedings to collect the taxes in question by a sale of property, had thereafter removed from that town, leaving the office vacant. So the temporary injunction against him was made permanant. As to the town of Hartford, the chancellor ruled that the taxes were valid and collectible, and modified the preliminary injunction so as to allow the town to proceed anew to collect them by a legal officer, which modification was not to become operative until after the determination of this suit in this court. The plaintiff excepted and appealed.

Those who acted as listers in making the quadrennial appraisal of 1930 were Seth B. Wright, Leslie I. Walker, and Romaine A. Spafford. Walker was chosen at the annual meeting of the town in 1929, in this way: He was nominated as a candidate for the office of lister for a three-year term; no other name being presented, it was voted, viva voce, that George G. Nichols be instructed to cast one ballot for Walker for the office named. Such a ballot was cast, and Walker was declared elected lister for the term specified. In exactly the same way, Spafford was chosen as a lister for a three-year term at the annual town meeting in 1930.

Did the method pursued meet the requirements of the statute, and result in a valid election of these men as listers of the defendant town?

Among other things, it is provided by P. L. 3432, subd. 7, that at annual town meetings, there shall be chosen "one lister for a term of three years who shall be elected by ballot." It is also provided in that section that some, but not all, of the other town officers shall be elected by ballot.

So a proper construction of this statute will furnish the answer to the question propounded above.

The intention of the Legislature constitutes the law. Coral Gables, Inc., v. Christopher, 108 Vt. 414, 418, 189 A. 147, 109 A.L.R. 474. To effectuate that intention, the language of the Legislature may be enlarged or restrained, when necessary. Simonds v. Powers' Estate, 28 Vt. 354, 355. In construing statutes, courts must consider, not only their letter, but their reason and spirit. Town of Ryegate v. Wardsboro, 30 Vt. 746, 749. So it is that a thing which is within the intention of the Legislature, though not within its letter, is as much within the statute as if it was within the letter. Trustees of Caledonia County Grammar School v. Kent, 86 Vt. 151, 158, 84 A. 26. And, conversely, a thing which is not within the spirit of a statute, is not within the statute, though it is within the letter of it. Osgood v. Central Vermont Ry. Co., 77 Vt. 334, 337, 60 A. 137, 70 L.R.A. 930; In re Fulham's Estate, 96 Vt. 308, 317, 119 A. 433; Town of Hartland v. Damon's Estate, 103 Vt. 519, 528, 156 A. 518; Brammall v. Larose, 105 Vt. 345, 349, 165 A. 916.

We do not stop to consider whether the action of the defendant town comes within the letter of the statute, for we are well assured that it does not come within its spirit.

In statutory construction, the words used by the Legislature are to be taken in their ordinary sense, unless that would lead to an unintended result. Safford v. Houghton's Estate, 48 Vt. 236, 238, As applied to the case in hand, this rule requires us to construe the statute before us as meaning that the election of the officers therein specified shall be "by ballot, as that term is usually and generally understood in this country." That is just what this court said about this matter in Temple v. Mead, 4 Vt. 535, 540. That case involved a constitutional question, but the construction of a statutory provision should be in harmony with it.

An examination of the authorities discloses that from a very early time "voting by ballot" has been a term used to distinguish open voting from secret voting. The privilege of secrecy is of the essence of voting by ballot. This is sustained very generally. In State v. Anderson, 26 Fla. 240, 8 So. 1, 5, wherein a constitutional provision was involved, the court said: "The material guaranty of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted, or shall know unless the voter shall, of his own free will, inform him."

To the same effect are Brisbin v. Cleary, 26 Minn. 107, 108, 1 N.W. 825; City of Detroit v. Board of Inspectors, 139 Mich. 548, 102 N.W. 1029, 1031, 69 L.R.A. 184, 111 Am.St.Rep. 430, 5 Ann. Cas. 861; Williams v. Stein, 38 Ind. 89, 10 Am.Rep. 97, 101; Cooley, Const.Lim., 8th Ed., 1374; State v. Barden, 77 Wis. 601, 46 N.W. 899, 10 L.R.A. 155. 157; Lynch v. Malley, 215 Ill. 574, 74 N.E. 723, 724, 2 Ann.Cas. 837: State v. Shaw, 9 S.C. 94, 132; People v. Pease, 27 N.Y. 45, 81, 84 Am.Dec. 242; 1 Bouv.Law Dict.; Rawle's Third Rev., p. 983.

None of these really adds anything to the law laid down in Temple v. Mead, supra, which has, for many years, been a leading case on this subject, and is very widely cited. The court in that case said: "The principal object of this last mode [voting by ballot], is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote for either of the candidates who may be...