Town of Jaffrey v. Smith

• Decision Date: 06 June 1911
• Citation: 80 A. 504,76 N.H. 168
• Parties: TOWN OF JAFFREY v. SMITH. SMITH v. TOWN OF JAFFREY et al.
• Court: New Hampshire Supreme Court

80 A. 504

76 N.H. 168

TOWN OF JAFFREY

v. SMITH.

SMITH

v. TOWN OF JAFFREY et al.

Supreme Court of New Hampshire. Cheshire.

June 6, 1911.

Transferred from Superior Court, Cheshire County; Wallace, Chief Judge, and Mitchell, Judge.

Action by the Town of Jaffrey against Ezra M. Smith, executor of Maria Adams, and petition by the executor to review errors of law in the action of the selectmen in assessing a tax. Question of law on the facts found by the court in the first case transferred from the superior court. Case discharged. Demurrer to the petition in the second case transferred without ruling. Petition dismissed.

Assumpsit in the first case, to recover a tax of $18,935.71 assessed against Maria Adams in Jaffrey for the year 1907. Facts found by the court.

Maria Adams died April 27, 1907. She had resided in Jaffrey, and on April 13th gave a sworn inventory of her taxable property to the selectmen. She gave in some real estate and $10,000 in personal property. Acting upon this, the selectmen assessed her tax at $238, which was paid June 12th. May 16th the defendant was appointed her executor. He filed an inventory of her estate which was accepted by the probate court June 11th, and which showed that she had taxable personal property to the amount of $255,888, more than she gave in for taxation. August 31st the selectmen sent the executor notice "that, having found more property of Maria Adams than she returned under oath, we shall proceed to tax the same according to law. Sections 15 and 16, chapter 57, of the Public Statutes of New Hampshire."

When the selectmen assessed the taxes in April, they made a record thereof in the book of polls and ratable property of the town and signed the same at the end of the assessment. August 31st, on the page following these signatures, they wrote: "The following property which was omitted by mistake has been added to the tax collector's book with warrant to collect the same." That part of the schedule which refers to the property of Maria R. Adams is as follows:

Resident.

Value of Stock in Public Funds.

Money on Hand, at Interest or on Deposit.

Total Valuation.

Reduced Value.

Total Amount of Taxes.

Adams, Maria R.

$25,300

$230,588

$255,888

$127,944

4 times

$18,935.71.

This assessment was not signed or dated. The record was introduced in evidence subject to exception. The executor was notified of the tax in September, and in January, 1908, written notice and demand for payment was again sent to him by mail. To this he replied as follows: "Maria R. Adams died April 27, 1907, and I was appointed executor of her will May 16, 1907, and removed all her personal property liable to taxation to Peterborough, where I reside. June 11, 1907, I paid you as collector the tax of Maria R. Adams committed to you for collection, as assessed by the selectmen of Jaffrey for the year 1907, and hold your receipt for the same. Sept. 2, 1907, I received a notice from the selectmen of Jaffrey dated Aug. 31, 1907, stating that having found more property of Maria R. Adams than she returned under oath they should proceed to tax the same according to law. Sept. 11, 1907, I received a notice from you as collector that the taxes assessed against Maria R. Adams in Jaffrey for the year 1907 was $18,975.71. Any assessment made by the selectmen of Jaffrey against Maria R. Adams on personal property after my appointment and the removal of the property from Jaffrey was illegal and I shall not pay the tax. You can take any action in regard to the tax that you think best." This action was begun in March, 1909. The questions whether upon the foregoing facts there was a legal assessment of the tax of $18,935.71 or any part thereof, and, if so, whether this action can be maintained, were transferred without ruling from the October term, 1909, of the superior court, by Wallace, C. J.

Charles H. Hersey, John E. Allen, and Leonard Wellington, for plaintiff.

Streeter, Hollis, Demond & Woodworth, Cain & Benton, and Ezra M. Smith, for defendant.

PEASLEE, J. 1. The first objection raised to the maintenance of this suit is that the record introduced in evidence is insufficient and incompetent to prove the assessment of a tax, because the record was not signed by the selectmen. Authority for this proposition is found in the reasoning in Perkins v. Langmaid, 36 N. H. 501, where it is held that the "fair record" in the selectmen's book (Pub. St. 1901, c. 59, § 5) is the assessment, and that there is no sufficient record without the signatures of the selectmen. This case was recognized as authority in Paul v. Linscott, 56 N. H. 347, but with evident doubt of its soundness, if taken literally. It is now said that, because these cases have construed the statute and the statute has since been re-enacted, the cases have been adopted by the Legislature, and are no longer subject to judicial reversal, even if they are unsound. This is true only so far as a case assumes to construe the statute. So far as it considers and decides general legal propositions, it stands as others do, even though portions of the same opinion construe a statute. So here the discussion and decision of what constitutes the essence of the assessment seems to be the consideration of a broad legal proposition, rather than a defining of that word as used in this particular statute.

The view that the record is the assessment in the sense that it is the essence of the judicial act of fixing the amount of the tax is not the law in this state. The statute "requires the selectmen to assess the polls and estates their just and equal proportion, to make a list of such assessments, and commit it, with their warrant, to the collector. The subsequent proceedings, such as recording the invoice and assessment in their own book, and causing them to be recorded by the town clerk, are for the purpose of preserving the memory and making a publication of their doings. The omission of any or all of them cannot vitiate the assessment, or vacate the warrant which has already gone forth for the collection of the taxes. These things they are required to do, and to do seasonably, that people may inspect the records when made, and not that there may be a valid assessment, or that an assessment already made and committed for collection may remain good." Smith v. Bradley, 20 N. H. 117, 120. "A taxpayer's liability to contribute his share of the common burden judicially ascertained by a court of special and limited jurisdiction declared in a judgment called an assessment, and enforced by an executon called a warrant, is not created by the assessment." Boody v. Watson, 64 N., H. 162, 167, 9 Atl. 794. The mere making up the record is a ministerial act; while hearing and weighing evidence, applying the law, and reaching a conclusion are of a judicial nature. Barhyte v. Shepherd, 35 N. Y. 238, approved in Boody v. Watson, supra.

An assessment is a judgment, but the record is no more the vital thing than is the recorded judgment of any other court. It would be a strange anomaly if the rule were more strict as to the records of these lay tribunals than in the case of courts composed of trained lawyers, officered by clerks whose special work is keeping correct and formal memorials of court proceedings. In the case of courts, mere docket entries are sufficient data for a judgment. If suit is brought on that judgment, and the defendant pleads nul tiel record, the extended and formal record may then be made up and signed, and the defendant's plea goes for nothing. Willard v. Harvey, 24 N. H. 344. This is but a circumlocutory way of holding that a formal and attested record is not essential to the validity of a judgment. The record should be made, and when made affords conclusive evidence of what was adjudged. If it is not made, the plaintiff may fail because he cannot produce any proof of what was done; but when (as in this case) the proof is forthcoming, the fact of the adjudication is legally established. State v. Cox, 69 N. H. 246, 41 Atl. 862. The amendment or extension of the record ordered and made in Willard v. Harvey added nothing of substance to the proof of the judgment theretofore presented. Upon satisfactory evidence the court found that a judgment had been rendered. That was all that was essential in that suit and all that could affect the result The extended record then made was valuable merely as formal proof for the future of what had already been proved in the case by a less esteemed class of evidence. Other authorities tending to support the conclusion here reached are: Caouette v. Young, 67 N. H. 159, 32 Atl. 157, 68 Am. St. Rep. 643; Hall v. Manchester, 40 N. H. 410; Little v. Downing, 37 N. H. 355, 304; Ferguson v. Clifford, 37 N. H 86, 95; 3 Wig. Ev. § 2159. It is found as a fact that the selectmen made the assessment and entered in their record book the unsigned memorial of their transaction. No reason having been suggested why the judicial acts of selectmen should be evidenced by a more perfect record than those of a court, the proof must be considered sufficient. No logic can make it appear that the latter are sufficient wherein the former would be fatally defective. If the records are amendable on proof, there seems to be no sufficient reason why they are not provable without amendment. State v. Cox, supra. If, however, the defendant insists upon a formal record, the superior court can order that the record be amended by adding the signatures of the selectmen, and this order will be recorded in the books of the selectmen and town clerk. This course is not the creation of a new cause of action after suit was begun. It is a mere matter of evidence. The opposite conclusion can be reached only by putting the memorial in the place of the chronicled event.

2. Another defense made is that there was no demand upon the executor before the suit was brought. All taxes being assessed as of April 1st (Pub. St. 1901, c. 57, § 1), this assessment relates back to that...