William R. Beebe v. Town of Rupert
| Decision Date | 06 February 1945 |
| Citation | 41 A.2d 149,114 Vt. 172 |
| Parties | WILLIAM R. BEEBE v. TOWN OF RUPERT ET AL |
| Court | Vermont Supreme Court |
January Term, 1945.
Employment of Injunction to Restrain Collection of Illegal Taxes.
1. Where the recognizance for costs in a chancery suit is deemed by the defendant to be inadequate, his remedy is to move for additional security under P. L. 1852, and not by way of motion to dismiss or abate.
2. If the subpoena attached to a bill in chancery is executed by the wrong official such defect is one which may be waived and is waived by entering a general appearance and answering the bill.
3. That a tax is illegal because levied under an unconstitutional statute, or for an unlawful purpose, or by persons having no authority whatever to make the levy, or assessed on persons or property not subject to taxation is sufficient ground to justify a court of equity in enjoining proceedings for its collection, unless such remedy is prohibited by statute.
BILL IN CHANCERY to enjoin collection of tax. In Chancery Bennington County, Blackmer, Chancellor. Decree for the defendants, dismissing the complaint.
Decree reversed, and the defendants and their successors in office are hereby enjoined from levying, enforcing extending or collecting any poll tax assessed against the plaintiff in the Town of Rupert for the year 1939, and the said defendants are hereby directed to cancel the warrant or warrants issued thereon and to correct the town grand list for the year 1939 by striking therefrom the poll of the plaintiff, William R. Beebe, and cancelling the poll tax assessed thereon against him.
Christopher A. Webber and Joseph B. McCormick for the plaintiff.
Collins M. Graves for the defendants.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
In this chancery suit the plaintiff seeks an injunction restraining the defendant town and its listers and collector of taxes from enforcing collection of a poll tax alleged to have been illegally assessed against the plaintiff for the year 1939, and directing the defendants to strike from the town grand list for that year the poll of the plaintiff and to cancel the tax assessed thereon against him.
The bill of complaint was entered in the Bennington County clerk's office on Feb. 13, 1941, and on Feb. 21st following an attorney appeared specially for the defendants and filed a motion "to dismiss or abate the plaintiff's writ for that he has not complied with the provisions of Secs. 1260 and 1492 of the Public Laws in that he has not given sufficient security to each of the defendants by way of recognizance, all of which appears upon the face of the plaintiff's writ filed with the clerk of said court." This motion was overruled with exceptions to the defendants. In the record before us nothing further appears in regard to this motion. On Aug. 29, 1941, the defendants filed an answer to the complaint, and on Dec. 7, 1943, the present attorney of record appeared generally for the defendants. Thereafter hearing on the merits was had before the chancellor, findings of fact were made and decree rendered dismissing the complaint. The plaintiff comes here on exceptions to three of the findings and to the decree. In their brief the defendants now argue that the claimed defect pointed out in the motion of Feb. 21, 1941, rendered the process void and that the court was therefore without jurisdiction.
P. L. Sec. 1260, referred to in the motion, provides that "a subpoena requiring a party to appear to answer to a bill of complaint shall not issue until the plaintiff gives sufficient security by way of recognizance, to be taken by the officer signing such subpoena, to the adverse party, for the costs of the proceedings, as in a writ of attachment in an action at law." So much of Sec. 1492 as is here material reads: "A writ of summons or attachment requiring a party to appear and answer before a court shall not be issued, unless sufficient security is given to the defendant, by way of recognizance, by some person other than the plaintiff, to the satisfaction of the authority signing such writ, that the plaintiff will prosecute his writ to effect, and answer the damages, if judgment is rendered against him;... and if a writ is otherwise issued, it shall, on motion, abate."
We cannot agree with the defendants that the recognizance in this case was defective. The minute thereof appearing on the subpoena recites that the surety recognized "as the law directs." Furthermore the adverse party here consisted of several defendants and the minute indicates that the recognizance was taken to the defendants. Whether it shall be taken jointly or severally or jointly and severally where there are more defendants than one the statute does not direct. If the defendants deemed the security inadequate they could move for additional security under P. L. 1852. Page v. Baldwin, 29 Vt. 428, relied upon by the defendants, is not here in point. That was an action in debt on recognizance by four persons summoned as trustees in a previous action, and it was there held that the proceedings were as much a distinct and separate matter against each trustee as if separate suits had been commenced upon their individual indebtedness; that separate judgments should have been rendered in favor of each trustee who was discharged; that recognizance was properly taken to each trustee as security for his separate costs and that no joint action could be maintained thereon.
In their brief the defendants contend, for the first time, that the court was without jurisdiction because the subpoena attached to the complaint was signed by a master in chancery in violation, it is said, of P. L. 1256. That section provides that "process issued out of a court of chancery shall be signed by the clerk of the court to which such process is made returnable or by a chancellor; but a master may sign subpoenas and take recognizances for costs to bills in chancery and petitions for foreclosure of mortgages returnable in any county." The word "subpoenas" as used in the second clause of this section is not restricted and would seem to include all subpoenas, whether issued to compel the attendance of parties or of witnesses. Be that as it may the defect, if it be one, could at most only bring the process within the second class of void process as set forth in Howe v. Lisbon Sav. Bank, 111 Vt. 201, 14 A.2d 3, and it is clear from what we have hereinbefore said that it has been waived by the defendants. See Pollard v. Wilder, 17 Vt. 48; Huntley v. Henry, 37 Vt. 165; Mack v. Lewis, 67 Vt. 383, 31 A. 888.
It is found by the chancellor, inter alia, that during the year 1939, and for some time prior thereto, the plaintiff was a legal resident of and was domiciled in Albany, New York during the year 1939 the listers imposed a poll tax upon the plaintiff and set his name in the grand list of the Town of Rupert as a poll tax payer; from 1934 to date the plaintiff, together with his mother and two sisters, owned, as tenants in common, a dwelling located in the Town of...
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