Newell v. Town of Whitingham

58 Vt. 341

• Court: Supreme Court of Vermont
• Decided: October 15, 1885
• Status: Published

Opinions

The opinion of the court was delivered by

Veazey, J.

The listers of the defendant town were satisfied with the inventory of the plaintiff as filled out and tendered by him, with the exception of the interlineation in the oath, and for this reason only refused to receive it and administer the oath.- The inteidineation was in the words, “to my best knowledge and belief.” By sec. 4 of No. 78, of the Acts of 1880, it was provided as follows: “Said inventories shall also contain the following oath,” then followed the form just as printed in the blank inventory, and in which said interlineation was made by the plaintiff. Sec. 14 of said act was this: “If a lister accepts the inventory of a person not made out and sworn to as provided in this act, * * * he shall, for each inventory so received, * * * forfeit to the town or city where he resides the sum of two hundred dollars; and’any tax-payer in such town, in the name of the town, may sue, and recover such penalty for the benefit of such town.”

The plaintiff insists that the interlined oath was a substantial if not literal compliance with the requirements of the statute and that is sufficient in the construction of an act of this kind.

The test is the legislative intent, to be deduced from the terms of the enactment as a whole. We think it is plain that the intention was to confer upon the listers the right to exact the oath prescribed. This is indicated by the provisions quoted and by others. The listers could not take up the inventories before April 1; and were limited to April 25 to complete and arrange in alphabetical order and lodge the personal lists of all the tax-payers in the clerk’s office. Sec. 15. The variation of the form of the oath under a claim that it did not vary the substance or legal effect, would present practical difficulties to the listers that could not have been contemplated, in view of the liability and limitation upon them. The plaintiff’s claim seems to come to this: Though in terms subject to a penalty for any deviation from the statute, yet the listers must stop and deliberate as a tribunal upon every qualification of oath offered, and decide whether it is a substantial variation or not; that they are liable to prosecution for the penalty if they decide in favor of the tax-payer; and are liable to suit against themselves or the town for the illegality of the tax, if they decide against the tax-payer; and this in respect to a statutory provision concededly not doubtful or uncertain in terms. Nor is this all. No one claims that the listers should receive an oath differing in substance or legal effect from the statutory form. Then why should the listers not be protected in requiring that form? Why should the legislature have intended that they should be troubled with the fanciful notions of every tax-payer in respect to form, especially when every deviation from the prescribed form would involve the difficult question as to whether it was matter of substance or form? Where the legislative enactment is plain and certain in terms, and nothing in substance is to be gained by a deviation, and substantial convenience and advantage, without injustice, is subserved by literal compliance, we think such compliance was intended. It would seem, to be novel to predicate legal error upon the action of listers for adhering to the plain provisions of the statute in the discharge of official duty, and declare a tax unlawful, where their right to proceed under the statute is' conceded.

The view taken renders it unnecessary to pass on the question whether the oath tendered varied in substance from the oath prescribed.

The refusal of the plaintiff to make, swear to, and deliver an inventory as required, though conscientious, was intentional, therefore wilful in the sense in which that term is used in sec. 10. It being wilful the duty of the list- ■ ers to “ ascertain and double” followed as provided in said section. The list and tax were therefore lawful; and the_pro forma judgment of the County Court is affirmed.