Bellows v. Weeks

41 Vt. 590

• Court: Supreme Court of Vermont
• Decided: January 15, 1869
• Status: Published

Opinion

The opinion of the court was delivered by

PiERPOiNT, C. J.

This is an action of trespass, brought against the- defendant to recover the value of certain property taken and disposed of by him, which property belonged to the plaintiff.

The defendant justifies on the ground that he was the constable and collector of taxes for the town of St. Albans ; that, as such collector, he had in his hand certain tax-bills and warrants, in which taxes wore assessed against the plaintiff, which he was required by law to collect, and that he took the property in question and disposed of the same according to law in payment of such taxes.

The plaintiff insisted in the court below, and insists here, that the defendant fails to make out a justification, on the ground—

First — That the said taxes against the plaintiff were not assessed upon a legal grand list of the town of St. Albans, for the reason that the grand list of said town, for the year 1864, on which said tax was assessed, after it had been made by the listers, and deposited with the town clerk of said town, on the 15th day of May of that year, as required by law, had been materially altered by adding thereto the names of other persons and the amount of their lists; by altering the amount at which sundry persons were severally set in said list when it was so deposited, increasing tbe list of some and reducing that of others; and that these additions and alterations were made in part by the listers themselves and in part by other persons.

It appears from the exceptions that the plaintiff’s evidence tended to show that such additions and alterations had in fact-been made after the list had been returned to the town clerk’s office. It also appears that in the fall of 1864, the legislature, by an act that was passed and went into operation on the 18th day of November, 1864, declared that “ The grand list of the town of St. Albans for the year 1864, as made out and corrected by the: listers of said town, and all taxes assessed thereon, are hereby declared legal and valid.”

• There was no evidence tending to show that the plaintiff’s list-had in any respect been altered or changed after the grand list had been returned to the town clerk’s office.

The county court, conceding the facts to be as the evidence tended to prove, decided : “ That the grand list is to be deposited in the town clerk’s office before the 15th day .of May, each year. That listers have no authority to alter the same after it is thus returned ; still, if deposited or amended by the listers out of time, that whatever alterations were made by the listers were cured by the act of the legislature. -That whatever alterations were made by any other person, not by them authorized, would not vitiate the list, but the alterations, and not the true list, would be invalid. And the plaintiff’s taxes would not be rendered uncol-lectable because some other person was erroneously taxed, or taxed'too little or too much.”

In this it is claimed by the plaintiff there was error. In determining this question, it may be borne in mind that it is not the making of the grand list of the town that imposes the obligation upon the inhabitants thereof to contribute to the public charges and expenses of government. That obligation is imposed by law, and is sometimes likened to a contract, whereby the government undertakes the protection of the individual in the enjoyment of his rights of person and property, and the individual promises to obey the laws, and to contribute according to his means to defray the charges and expenses of the government. Here the theory of a contract seems to terminate. The proceedings to be adopted for the enforcement of this obligation on the part of the individual are matters that rest entirely and absolutely with the government, and these proceedings, we apprehend, are not in the nature of a contract between the government and the individual, as claimed by the counsel for the plaintiff, and which the government, having once adopted, are not at liberty to change, alter, or abolish, at pleasure.

The legislature of this state established a system of proceedings for the purpose of enforcing this obligation, and prominent in this system is the making of a grand list. The principle upon which it is to be made, and the course to be pursued by the persons appointed to make it, are specifically declared and pointed out; and, among other things, it is provided that the grand list for each year shall be completed by the listers and deposited in the town clerk’s office on or before the 15th day of May of such year, except in those years when real estate is appraised. The listers of the town of St. Albans did so deposit the grand list of that town in the year 1864. Afterward, having discovered, probably, that they had committed some errors in the making of it, they proceeded to correct it by making alterations thereof or additions to it. This, clearly, they had no legal power to do. When they had discharged their duties as listers, and had deposited the list with the town clerk, they had no further control over it, or authority in respect to it. Thereafter their relation to it was precisely the same as that of any other inhabitant of the town. This principle was expressly decided in Downing v. Roberts, 21 Vt., 441. Whether such act of the listers rendered the grand list void, or not, is not the question we are now considering; but conceding, for the purposes of this question, that the legal operation of such act was to-invalidate the whole list, so that no tax could legally be assessed thereon against any of the inhabitants of the town, what then was the effect of the act of the legislature, in the fall of 1864, declaring that the said grand list, as so corrected, should be the legal grand list of said town, and all taxes assessed thereon should, be legal ?

It is claimed on tbe part of the plaintiff, that in this the legislature exceeded their constitutional power, and interfered with and disturbed the vested rights of the plaintiff and other inhabitants of the town. What vested rights of the plaintiff and others were thus disturbed, the plaintiff does not specify, and it is not easy to imagine. If the grand list was rendered void, that would not affect the plaintiff’s liability to contribute to the support of the government, or to the payment of the. debts of the town. Any creditor of the town may bring his action, obtain a judgment, and compel its payment by seizing -and disposing of the property of the plaintiff or any other inhabitant of the town.

The plaintiff has no vested right in respect to this particular grand list; he has the general right to insist that a tax shall not be assessed against him, except upon a legal grand list of the town; but what shall, or shall not, be a legal grand list, is a matter always within the control of the legislature. Suppose that after a grand list has been deposited with the town clerk, as required by law, it should be entirely destroyed, accidentally or designedly, can there bo a doubt that the legislature would have the power to declare that the listers should proceed to make a now list in the same manner as before, except as to time, and that such list, when so made, should be the legal list of the town ? Or if, in such a case, after the destruction of the list, the listers should, without authority, proceed to make a new one, might not the legislature, on being satisfied that such list was correctly made, declare that it should bo the legal grand list ? And we think it equally clear that if the listers, by any unauthorized acts, should render the list invalid, the legislature may, by an act for that pur-po'so, declare such list to be legal and valid, and that such act would not be an infringement of any provision of the constitution.

But it is said the alterations made by persons other than the listers made the list void, and that this defect is not cured by the act of the legislature, as that by its terms applies only to the list as corrected by the listers ; and that the county court erred in saying “ that the alterations, and not the true list, would be invalid.” It is well settled that in the case of written instruments between parties, an alteration made therein by a stranger to the instrument does not invalidate it, but that the instrument stands good as originally made, the alteration having no effect. This principle was fully recognized and applied in the case of Bigelow & Hoagland v. Stilphen, 35 Vt., 521. And there seems to be no good reason why a more rigid rule should be applied in cases of this kind than in the case of written instruments of a private character. When a party to a written instrument alters it, he renders it void, so that he cannot enforce it as it originally stood. This rule is founded in public policy, and tends to prevent tampering with written instruments by the parties,.who are under a temptation to do so: the forfeiture of the original instrument operating-in the nature of a penalty. But this has no force when applied to a stranger to the instrument, and has no application to a document like a grand list, to which there are no parties in the sense in which that term is used in speaking of written instruments generally. And to hold that an illegal alteration in the grand list should render it wholly void, would punish the innocent without restraining the wrong doer ; while to treat the alterations as of no effect, and the list legal as originally made and deposited with the town clerk, saves the rights of all persons and avoids a great public inconvenience. And this principle would, perhaps, have been just as applicable in this case to the alterations made by the list-ers as to those made by others if the legislature had not intervened and made such alterations legal; for after the list is returned to the town clerk’s office, the listers would seem to be as much strangers to the instrument as any other persons. The cases of Henry v. Edson, 2 Vt., 499 ; Downing v. Roberts, 21 Vt., 441 ; Thurston v. Little, 3 Mass., 429, cited by plaintiff’s counsel, are all consistent with this view of the case. In Doivning v. Roberts it was decided that when the name and property of a person was by a stranger inserted in the grand list, after it had been returned to the town clerk, no tax could be assessed thereon and collected against such person, not upon the ground that the whole list was void, but that the transaction as to such person was void, and did not create a list against him on which a legal tax could be assessed. As the list of the plaintiff in this case remained as it was when the grand list was returned to the town clerk’s office, there seems to be nothing of which he can avail himself by way of defense on account of the alterations.

As the grand list was not rendered invalid, the vote of the town, directing a tax to be assessed thereon was a legal proceeding,, and the fact that some alterations were made therein, through- the instrumentality of the listers and the legislature, after the tax was voted, and before it was assessed, could not have the effect to invalidate the tax and prevent its collection.

Second — It is insisted that the county court erred in deciding that the signature of the selectmen to the certificate of the assessment was sufficient, it appearing that one of the selectmen signed his own name thereto, and then, being authorized by the other two so to do, wrote their names to the certificate also.

It appears from the case that the three selectmen acted in concert in making the assessment; that in all matters that required the exercise of judgment or discretion, each acted and concurred therein down to the time when the certificate was ready-for their signatures, and then the mechanical process of writing their names thereon was performed by one under the authority of the others. The principle is well settled that when one authorizes another to sign his name to an instrument, and it is so done, the legal effect is the same as though he had signed it himself in person, as said in Havens v. Hobbs, 1 Vt., 238: “The person who thus affixes the signature is regarded not so much an agent as an instrument used to perform the act.” It is not delegating an authority conferred by another or by law. This is not like the case of Reynolds v. Inhabitants of New Salem, 6 Met., 343, cited by the plaintiff. The statute of Massachusetts requires the warning for a town meeting to bo signed by the selectmen of the town. In that case the warning was signed by one of the selectmen, who added to Ms name the words “ for himself and the other selectmen,” but did not attach their names to the warning. The court held that the warning was not signed as the law required, and that the action of the meeting was illegal. Then if the one had the authority to sign the names of the others, he did not do it, and the warning was void upon its face, and the inhabitants were under no obligation to regard it.

In this case the counsel for the plaintiff have not referred us to any provision of the statute that requires the selectmen to make or sign any certificate of the assessment, and upon such examination as I have made, I have not been able to find any. If there is no such provision, clearly there was no error in the decision of the county court of which the plaintiff can complain.

Third — It is claimed that the warrant for the collection of the tax voted on the 11th day of August, 1864, was void, because it bears date the 7th day of March, 1864, before the tax was voted. The exceptions state that it is apparent upon the face of .the warrant that the mistake in the date was a mere clerical error in writing 1864 instead of 1865, which was the true time of issuing the warrant. We are inclined to think that a date is not an indispensable part of a warrant of this kind, but that when a warrant for the collection of a town tax is attached to the rate-bill by the selectmen as the statute requires, it is sufficient even though it has no date. But however that may be, it is well settled that where an instrument is dated at a time different from that of its execution, parol evidence is always admissible to show the true time when it was executed, and when that is established, the instrument takes effect from that time. And especially is that so when, as in this case, the instrument carries upon its face the evidence of the error and all the elements necessary for its correction.

Fourth — At the time the town of St. Albans voted a tax of 350 cents on the dollar, on the 11th of August, 1864, the sum that would thus be raised was necessary to pay the bounty agreed to be paid to the number of men that wore then required to be raised to fill their quota; hence, the action of the town in voting the tax was legal, and the tax was collectible. To secure a more prompt payment of the money, the town voted to deduct three per cent, from the amount of any person’s tax who would voluntarily pay the same to the selectmen by the 1st day of September, 1864. Under this vote, a large majority of the tax was paid in to the selectmen, and all the tax-payers might have availed themselves of the same opportunity. As some did not, it became necessary for the selectmen to assess the tax and collect the remainder. In the meantime, circumstances transpired that relieved the town from tbc necessity of raising as many men as was at first required, and rendered it unnecessary to use for that purpose the whole amount of the tax. The town at g subsequent meeting, evidently for the purpose of equalizing the burden between those who had paid their taxes and those who had not, voted that the whole of the tax should be collected and the surplus refunded to the tax-payers. This was probably the easiest and most economical method of disposing of the subject, and to us it appears' entirely legal and just. The tax was not voted to raise money to be distributed to-and among the tax-payers, either in whole or in part; but the tax was voted for a proper, necessary and legal purpose, and was collectible. If the happening of new and unforeseen circumstances rendered it unnecessary to use all the money for the purpose for which it was voted, the town might return the surplus to the tax-payers, to each his proper proportion, or treat it as funds in their treasury, to be appropriated to the payment of any other legal obligation the town was then under, and thus diminish future taxes.

Fifth — -It is said the collection of the state tax was illegal, because no warrant for its collection was attached to the rate-bill, and none was produced upon the trial. This was probably an oversight on the part of the counsel.

The statute requires that when the legislature shall impose a state tax, the treasurer of the state shall immediately issue his warrant to the first constable of each town for its collection. We may assume that in this respect the treasurer performed his duty. The statute does not require that this warrant shall bo attached to the rate-bill of the state tax, as it does in the case of a town tax ; hence, the Avarrant in this case was not attached to the rate-bill, and need not have been. If an objection had been made in the county court on the ground of its non-production, it would undoubtedly have been obviated by its production, or by satisfactorily accounting for it. But the exceptions state expressly that no question of this kind Avas raised or passed upon in the county court. This being so, the question can not be raised in this court, as the rule is perfectly well settled, that no question can be raised here that the exceptions shoAV was not raised in the court below.

Sixth — We think the county court was right in saying that what the listers said to the plaintiff in respect to the amount that they had put him into the list, and what it was for, was important only as bearing upon the question whether or not the plaintiff’s bank stock was in fact included in his list, as ultimately fixed by-the selectmen: and that question was for the jury.

Seven h — This objection is to the charge of the court to thfi jury. If the charge was wrong, no question can be raised here in respect to it, as it appears from the exceptions that no exception was taken to the charge to the jury upon the questions of fact submitted to them.

Eighth — This exception is to the decision of the court below overruling the motion to set aside the verdict. It appears that one of the jurors, who sat in the trial of this case and participated in the verdict, was a party to a suit pending in the samo court, that was set for trial by jury at the same term.

By an act of the legislature, passed in 1864, it is provided “ that no person shall serve as a petit juror, at any term of the county court in any county in this state, at which time he may have a cause pending in court to be tried by jury at the time he is so summoned to serve as a juror, but on motion to the courtt such juror or jurors shall be discharged from further serving as juror at such term of court.” In this case, no motion was made for the discharge of the juror, but he continued to servo through the term; no notice was taken of the fact that he was disqualified by the statute. Shall the verdicts in which he thus participated be set aside ? We think it very clear that such was not the intention of the legislature, but that any person, who has the right to avail himself of the provisions of the statute, must pursue the course pointed out by the statute ; that is, move the court to discharge him, and until the juror is discharged on such motion, his action will not be invalid or subject to be set aside. This construction is clearly indicated by the language of the act, “ shall be discharged from further serving as juror at such term,” showing that he would serve as juror until such motion and discharge.

By whom the motion is to be made is not now the question.. The juror’s adversary in the suit to which he is a party, and wbicb stands for trial, would seem to be the only person directly interested in his discharge.

We see no error in overruling this motion.

Other questions were made in the county court, but not being insisted upon here, are regarded as waived, and have not been considered.

Judgment of the county court is affirmed.