Smith & Son, Inc. v. Town of Hartford

• Decision Date: 13 January 1938
• Parties: SMITH & SON, INC. v. TOWN OF HARTFORD ET AL
• Court: Vermont Supreme Court

196 A. 281

109 Vt. 326

SMITH & SON, INC. v. TOWN OF HARTFORD ET AL

Supreme Court of Vermont

January 13, 1938

October Term, 1937.

Suit to Enjoin Collection of Taxes---Construction of Statutes---Consideration of Spirit of Statute---Words Taken in Ordinary Sense---"Elected by Ballot" in P. L 3432 Construed as Generally Understood---Voting by Ballot Defined---P. L. 3432, Subd. VII, Relating to Election of Lister, Construed---Lister Not Validly Elected under P. L 3432, Subd. VII---Provision of Constitution or Statute Not to Be Nullified---Municipal Officers to be Chosen as Required by Statute---Quadrennial Appraisal Held Invalid Where Listers Not Elected by Ballot as Required by P. L. 3432, Subd VII---Taxes Held Invalid Where Grand List Figures Taken from Invalid Quadrennial Appraisal---Unavailing to Show Listers De Facto Officers---Listers as State and Town Officers---Acts of De Facto Officer Not to Be Justified When Party---Enforcement of Tax a Proceeding in Invitum---Requirements for Validity of Property Tax---Full Authority in Officer Essential Where Collectibility of Tax in Issue---Legality of Acts of De Facto Officers as against Taxpayer---Necessity of Showing Legality of Every Step in Taxing Process.

1. Intention of Legislature constitutes the law, and to effectuate that intention, language of Legislature may be enlarged or restrained, when necessary.

2. In construing statute, court must consider not only its letter but also its reason and spirit, so that what is within intention of Legislature, is within statute though not within letter thereof, and what is not within spirit of statute is not within statute, though within letter thereof.

3. In statutory construction, words used by Legislature are to be taken in their ordinary sense unless that would lead to unintended result.

4. Provisions of P. L. 3432 that certain town officers shall be elected by ballot are to be construed as meaning that such officers are to be elected by ballot as that term is usually and generally understood in this country.

5. The distinguishing theory of the ballot system of voting 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.

6. Provision of P. L. 3432, subd. VII, that lister shall be elected by ballot necessarily implies expression of voter's choice by deposit of written or printed ticket bearing name of his candidate in receptacle provided therefor, in such way as to secure to him privilege of complete secrecy regarding person voted for.

7. Sole nominee for office of lister was not validly elected under provision of P. L. 3432, subd. VII, that lister shall be elected by ballot, and had no title to office, where one ballot was cast for him in accordance with viva voce vote instructing named person to cast such ballot, especially in view of provisions of P. L. 3433 requiring majority of all votes cast for election to any office when election is by ballot and of P. L. 3448 requiring that when ballot is had, polls shall be kept open reasonable time, etc.

8. When a state constitution makes certain officers elective, this provision cannot be evaded by any legislative subterfuge, and a town cannot, by vote or otherwise, nullify plain mandate of statute containing a like provision.

9. Municipal officers must be chosen in accordance with statutory requirements or they cannot lawfully act as such.

10. Quadrennial appraisal of town had no validity where it was made up by board of three listers, two of whom had no authority to act because they had not been elected by ballot as required by P. L. 3432, subd. VII.

11. In suit in equity to enjoin collection of local property taxes, where figures entered in invalid quadrennial appraisal as taxing value of plaintiff's real estate were carried into plaintiff's grand lists for two years, all taxes assessed on such lists were invalid and uncollectible.

12. In such suit, where two listers who made up quadrennial appraisal used in assessment of taxes in question were not validly elected, it availed defendant town nothing to show that such listers were de facto officers.

13. Legally elected listers are public officers exercising such governmental functions as State has entrusted to them, and though they are, in a real sense, State officers, in another sense they serve the town, since their product affords foundation for securing money with which town is able to discharge its governmental duties.

14. One exercising a public office cannot justify his acts on ground that he was de facto officer, in any suit to which he is party, and taxing authority stands before law no better than de facto officer thereof.

15. Enforcement of a tax is proceeding in invitum.

16. It is indispensable to validity of any local property tax that it shall be laid upon a grand list made up in substantial compliance with law, by officers selected according to law.

17. In all cases between taxpayer and taxing authority or officer appointed by it, wherein collectibility of tax is in issue, suit must fail unless officer whose acts are questioned was clothed with all power and authority appertaining to his office.

18. Acts of de facto officers are legal in controversies between third persons, but not as against taxpayer in controversies over taxes where acts essential to validity of taxing process were done by them in attempting to perform duties of their offices.

19. As against taxpayer, whoever would justify collection of tax must establish legality of every step in taxing process from beginning to end.

APPEAL IN CHANCERY. Bill seeking to enjoin collection of certain taxes assessed by defendant town on plaintiff's grand lists. Heard on pleadings and evidence and facts found after the June Term, 1936, Windsor County, Sturtevant, Chancellor. Decree permanently enjoining individual defendant but permitting defendant town to proceed anew with collection of the taxes in question. The plaintiff appealed and filed bill of exceptions. The opinion states the case.

Decree reversed, and cause remanded with direction that the defendant be permanently enjoined from collecting the taxes in question.

Fred B. Thomas and Wilson, Carver, Davis & Keyser for the plaintiff.

William S. Pingree and Raymond Trainor for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

POWERS

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 permanent. 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. VII, that at annual town meetings, there shall be chosen "one lister for the 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' Est., 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 Cal. Co. Gram. 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. Cent. Vt. Ry. Co., 77 Vt. 334, 337, 60 A. 137, 70 A.L.R. 930; In re...