The opinion of the court was delivered by
Redfield, J.
The power of taxation, although a necessary attribute of the sovereignty, in all governments, is, to some extent, an arbitrary power, as well in free governments, as in those whose powers are less strictly defined ; and is, by consequence, more or less subject to abuse. This power is, however, necessary to the very existence of any political organization, sufficiently efficient to answer the ends of all municipal authority — the just protection of civfi rights, the most important of which are life, liberty, and property, — for, without the power of coercion, protection would be impossible, Taxation, too, as one of the principal sources of the power of coercion, must be, to some extent, discretionary in' the legislature; so that, if any particular subject is fairly within the power of taxation, it is competent for the legislature, by general laws, to impose taxes to an indefinite extent — even to the prohibition or annihilation of any given species of property. The inequality or injustice of any system of taxation, established by the legislature, is no ground [467]*467of declaring it void, as was conceded in the case of M'Culloch v. State of Maryland, 4 Pet. Cond. R. 487, by Ch. J. Marshall. “That the power to tax involves the power to destroy, is a proposition not to be denied.”
The necessity of such a power in all .governments, and the difficulty of restraining its abuse, by constitutional checks, render the duty of courts, in relation to the subject, always delicate and difficult. In the present case, however, we are not called to decide whether any, and if any, what limits it is competent for the courts to impose upon the legislature in regard to this subject. The only question to be here determined is, how far the mode and manner of taxation, prescribed by the legislature, is necessary to be pursued by the subordinate municipal authorities, in order to the legality of assessments and collections, made by them.
The only mode of taxation allowed by the legislature to the several towns, is by vote, and assessment upon the list of the polls and rateable estate of the citizens; such lists to be perfected, in a prescribed time, and manner. Now, we are by no means prepared to say., that the legality of a tax is, in any way, affected by any mere circumstantial error or defect in the detail of the items, which go to make up the entire' grand list of the town. Such a doctrine would render legal taxation extremely difficult, if not impossible. More or less property subject to taxation will always be omitted, and this will, to some extent, increase the burdens of all the other tax-payers. Nor will the tax be rendered void by reason of the manner in which any matter is determined by the listers, if such matter rests fairly within their legitimate discretion.
For instance, in making appraisals, or in determining other matters properly referrible to their discretion, suitable allowance is to be made for the varieties, as well as the errors, of judgment, which occur in all matters of this kind. Such determinations are final, being made by law, subject to no revision here.
But, in regard to those matters which rested primarily in the discretion of the listers, but were made subject to revision by another board, and when the supervision of this superior board was made indispensable to the perfecting of the list, the determination of the listers alone was of no avail.
It is indispensable to the legality of any tax imposed by [468]*468the town, that it should have been made upon a list of the polls and rateable estate of the inhabitants, in substantial and bona fide compliance with the requisitions of the statute. By the statute in force at the time of making the list in this case, the listers are required first to make an appraisal of the improved real estate in the several towns, distinguishing the land from the buildings and building lots. This appraisal is then to be revised and equalized by a delegation of listers of the several towns throughout the county; and when such county convention order alterations in any of the towns, they are to certify them to the listers of such towns. This appraisal, thus corrected, is subject to a further revision by a committee of the legislature, and any alterations required by them to be made, are to be certified in like manner to the listers. This appraisal, thus completed, forms the basis of taxation of real estate for five years. The county committee, in the present case, required ten per cent, to be added to the appraisal of buildings and lots in the town of Chester; and .the state committee required fifteen per cent, to be added to the appraisal of land throughout the county of Windsor— both of which requisitions were properly certified to the listers of Chester, in time for them to have made the proper additions before the tenth of December, when the list was required to be completed. The addition, both of the ten per cent, on buildings and lots, and of the fifteen per cent, on land, was wholly omitted, and ten per cent, was deducted from the original appraisal of buildings and lots. In this state the list was returned to the office of the town clerk, and taxes assessed upon it. As the plaintiff’s list was mostly for personal property, he was very considerably affected by such omissions and alterations.
Upon two grounds, then, we think this was a void list.
1. The plain and obvious requisitions of the statute, in regard to the manner of making up the list, were disregarded, both by important and essential omissions, and by arbitrary additions, without even the color of right or legal warrant. If this may be done and still the fist be regarded as legal, so might it with equal propriety, if the entire real estate in town were omitted, or inserted wholly at random, without even the form of an appraisal. The proceedings of the listers are, in the present case, something worse than an [469]*469omission to return their appraisal to the county or stale committee for revision — which, by statute, is made indispensable to its binding force.
2. The list was not complete, until the alterations, required by the county and state committees, were made. Until that time, it was merely in an inchoate state — so imperfect, as no more to form the basis of any legal tax, than if it had been returned at any former stage in its progress.
We have not thought it necessary to examine in detail, the numerous cases read at the bar. They seem all to concur in the principle above stated, and which is expressed by Ch. J. Shaw, in Torrey v. Millbury, 21 Pick. 65: “ One rule is very plain, and well settled, that all those measures, which are intended for the security of the citizen, for securing an equality of taxation,” &c. “ are conditions precedent-, and if they are not observed, he is not legally taxed, and he may resist it.” I would add, as a further qualification of the general proposition, here laid down, that these “ measures,” in order to become “ conditions precedent,” must be such matters as enter into the framework of the assessment, and affect its principle, and not its details merely. The mistakes which occurred in footing the list, in the present case, although sufficiently obvious, and injuriously affecting the plaintiff’s interest, we have not been able to consider important to the legality of the taxes assessed on such list. So, too, the list not being returned to the town clerk’s office, in the year 1834, until after the tenth of December, notwithstanding the cases of
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The opinion of the court was delivered by
Redfield, J.
The power of taxation, although a necessary attribute of the sovereignty, in all governments, is, to some extent, an arbitrary power, as well in free governments, as in those whose powers are less strictly defined ; and is, by consequence, more or less subject to abuse. This power is, however, necessary to the very existence of any political organization, sufficiently efficient to answer the ends of all municipal authority — the just protection of civfi rights, the most important of which are life, liberty, and property, — for, without the power of coercion, protection would be impossible, Taxation, too, as one of the principal sources of the power of coercion, must be, to some extent, discretionary in' the legislature; so that, if any particular subject is fairly within the power of taxation, it is competent for the legislature, by general laws, to impose taxes to an indefinite extent — even to the prohibition or annihilation of any given species of property. The inequality or injustice of any system of taxation, established by the legislature, is no ground [467]*467of declaring it void, as was conceded in the case of M'Culloch v. State of Maryland, 4 Pet. Cond. R. 487, by Ch. J. Marshall. “That the power to tax involves the power to destroy, is a proposition not to be denied.”
The necessity of such a power in all .governments, and the difficulty of restraining its abuse, by constitutional checks, render the duty of courts, in relation to the subject, always delicate and difficult. In the present case, however, we are not called to decide whether any, and if any, what limits it is competent for the courts to impose upon the legislature in regard to this subject. The only question to be here determined is, how far the mode and manner of taxation, prescribed by the legislature, is necessary to be pursued by the subordinate municipal authorities, in order to the legality of assessments and collections, made by them.
The only mode of taxation allowed by the legislature to the several towns, is by vote, and assessment upon the list of the polls and rateable estate of the citizens; such lists to be perfected, in a prescribed time, and manner. Now, we are by no means prepared to say., that the legality of a tax is, in any way, affected by any mere circumstantial error or defect in the detail of the items, which go to make up the entire' grand list of the town. Such a doctrine would render legal taxation extremely difficult, if not impossible. More or less property subject to taxation will always be omitted, and this will, to some extent, increase the burdens of all the other tax-payers. Nor will the tax be rendered void by reason of the manner in which any matter is determined by the listers, if such matter rests fairly within their legitimate discretion.
For instance, in making appraisals, or in determining other matters properly referrible to their discretion, suitable allowance is to be made for the varieties, as well as the errors, of judgment, which occur in all matters of this kind. Such determinations are final, being made by law, subject to no revision here.
But, in regard to those matters which rested primarily in the discretion of the listers, but were made subject to revision by another board, and when the supervision of this superior board was made indispensable to the perfecting of the list, the determination of the listers alone was of no avail.
It is indispensable to the legality of any tax imposed by [468]*468the town, that it should have been made upon a list of the polls and rateable estate of the inhabitants, in substantial and bona fide compliance with the requisitions of the statute. By the statute in force at the time of making the list in this case, the listers are required first to make an appraisal of the improved real estate in the several towns, distinguishing the land from the buildings and building lots. This appraisal is then to be revised and equalized by a delegation of listers of the several towns throughout the county; and when such county convention order alterations in any of the towns, they are to certify them to the listers of such towns. This appraisal, thus corrected, is subject to a further revision by a committee of the legislature, and any alterations required by them to be made, are to be certified in like manner to the listers. This appraisal, thus completed, forms the basis of taxation of real estate for five years. The county committee, in the present case, required ten per cent, to be added to the appraisal of buildings and lots in the town of Chester; and .the state committee required fifteen per cent, to be added to the appraisal of land throughout the county of Windsor— both of which requisitions were properly certified to the listers of Chester, in time for them to have made the proper additions before the tenth of December, when the list was required to be completed. The addition, both of the ten per cent, on buildings and lots, and of the fifteen per cent, on land, was wholly omitted, and ten per cent, was deducted from the original appraisal of buildings and lots. In this state the list was returned to the office of the town clerk, and taxes assessed upon it. As the plaintiff’s list was mostly for personal property, he was very considerably affected by such omissions and alterations.
Upon two grounds, then, we think this was a void list.
1. The plain and obvious requisitions of the statute, in regard to the manner of making up the list, were disregarded, both by important and essential omissions, and by arbitrary additions, without even the color of right or legal warrant. If this may be done and still the fist be regarded as legal, so might it with equal propriety, if the entire real estate in town were omitted, or inserted wholly at random, without even the form of an appraisal. The proceedings of the listers are, in the present case, something worse than an [469]*469omission to return their appraisal to the county or stale committee for revision — which, by statute, is made indispensable to its binding force.
2. The list was not complete, until the alterations, required by the county and state committees, were made. Until that time, it was merely in an inchoate state — so imperfect, as no more to form the basis of any legal tax, than if it had been returned at any former stage in its progress.
We have not thought it necessary to examine in detail, the numerous cases read at the bar. They seem all to concur in the principle above stated, and which is expressed by Ch. J. Shaw, in Torrey v. Millbury, 21 Pick. 65: “ One rule is very plain, and well settled, that all those measures, which are intended for the security of the citizen, for securing an equality of taxation,” &c. “ are conditions precedent-, and if they are not observed, he is not legally taxed, and he may resist it.” I would add, as a further qualification of the general proposition, here laid down, that these “ measures,” in order to become “ conditions precedent,” must be such matters as enter into the framework of the assessment, and affect its principle, and not its details merely. The mistakes which occurred in footing the list, in the present case, although sufficiently obvious, and injuriously affecting the plaintiff’s interest, we have not been able to consider important to the legality of the taxes assessed on such list. So, too, the list not being returned to the town clerk’s office, in the year 1834, until after the tenth of December, notwithstanding the cases of Thurston v. Little, 3 Mass. R. 429, Thames Man. Co. v. Lathrop, 7 Conn. 550, and Thayer v. Stearns, 1 Pick. 482, we should hesitate to pronounce any just ground of declaring all taxes, assessed, thereon, void. So, too, the appraising of an acknowledged-less number of acres than should have been, and on that account proportionably raising the rate of appraisal, although a departure from the requirements of the statute, relates to matters resting wholly in the discretion of the listers, in the first instance.
We come, now, to consider the remaining arguments urged against the recovery in this particular action, which is assumpsit for money had and received, and in favor of the proposition that, if a recovery can be had in this form of ac[470]*470tion, it should only be for the excess, paid by the plaintiff, above what would have been his just proportion of the legal taxes.
In regard to the propriety of this remedy we entertain no ¿oubt. Money, the payment of which is coerced under any color of authority, which proves void, may always be recovered in this form of action. In regard to money collected under final process, it cannot be recovered until the judgment, for the enforcement of which such process issued, is reversed; and then it may always be recovered in this form of action, as is every day’s practice. In regard to money paid under tax warrants, where the taxes are illegal, the question may always be tried directly, in an action for the money, against the corporation who hold it, or trespass against the collector or selectmen. Adam v. Town of Litchfield, 10 Conn. R. 127; Preston v. City of Boston, 12 Pick. R. 7; 7 Conn. R. 550; Amesbury Man. Co. v. Amesbury, 17 Mass. R. 4614 Pick. 361; and many other cases cited by counsel.
But it is urged that such recovery cannot be had until after demand and refusal to pay the money. No case is read which goes this length; and, in principle, we think it unnecessary and unreasonable. The recovery here goes upon the ground that the payment was coerced by color of an authority in law, which was, in fact, always void. The law, in such case, implies a promise to pay back the money presently. Interest is recoverable thereon, and the statute of limitations begins to run from the time of payment. This view sufficiently answers another objection, i. e. that the payment on the part of the plaintiff was voluntary.
Upon the question, whether the plaintiff shall here recover the whole amount of taxes paid, although, in some sense, that operates severely upon the town, we have not been able to find any middle course, which, in principle, we could justify. The recovery goes upon the ground, that the list was imperfect, irregular, and defective, and wholly void, The assessment was, therefore, void. The town, which acts only through its agents and officers, and by its votes, is affected by all acts of its officers, within the general scope of their duties. If it were not so, they might escape all legal, as well as moral, responsibility ; and, from being esteemed soulless— [471]*471as, indeed, of necessity, they are* — they would become wholly irresponsible. The tax being void, then, they should not retain the money, or any part of it. Towns have no legal claim upon the citizen to contribute to the public burdens, except in a prescribed'mode---by compelling the payment of legal taxes. This, in the case of the plaintiff, they have voluntarily foregone, in attempting to impose upon him an illegal tax. We consider the remedy here afforded, of suffering the plaintiff to recover the entire sum thus wrongfully taken from him, but a simple act of justice ; and if the form of the redress operates severely upon the defendant, it is but a salutary and necessary restraint upon the disregarding, by public officers, of the plain and obvious provisions of so important a statute, as that regulating the entire subject of taxation in the state.
It has been said the consequence of such a decision, as we here make, will be fearful. I apprehend no such consequences. New such cases have occurred, or will occur • and if they do occur, whether more or less seldom, it is better, we think, that this wholesome remedy be applied to them, than that they be suffered to multiply without redress,- or rebuke.
Judgment affirmed*