Smith v. Stannard

70 A. 568, 81 Vt. 319, 1908 Vt. LEXIS 151

• Court: Supreme Court of Vermont
• Decided: July 27, 1908
• Status: Published

Opinion

Watson, J.

At the close of the evidence the defendant moved that a. verdict be directed in her favor on the grounds that (1) there is no evidence on the part of the plaintiff tending to show such an appraisal of the defendant’s taxable property as the law requires; (2) there is no evidence tending to show notice to the defendant that the listers in reference to her list have taken the steps which the law requires; (3) there is no evidence that a notice to the defendant, she having removed from Pair Haven and not being there, was given to her by the treasurer of the town within the time required by law, before he issued" a warrant for the collection of the tax; (4) the evidence, has no tendency to show that on the first day of April, 1902, the defendant was a resident of Pair Haven, so that the listers were justified in making up a list as they did; and (5) there is no evidence of a seasonable lodging in the town clerk’s office of an abstract of individual lists, and that notices of the time and place of hearing persons aggrieved by an action of the listers were posted in the town clerk’s office and other places required by law within the time the law requires. The motion was overruled, to which the defendent excepted. ■

For the tendency of the evidence concerning the character and continuance of defendant’s abode with her brother, and of his residence at Fair Haven, the reporter’s transcript of the testimony of certain witnesses is referred to and is. to control. The brother died June 16, 1901, consequently her abode with 'him, and his residence wherever it was, ceased at that time, and our consideration of the testimony to which reference is thus made is limited accordingly. As the case stood on the evidence, whether the defendant’s'domicile was at Granville, N. Y., or at Fair Haven, this State, at the time of her brother’s death was clearly a question of fact for the jury. Jamaica v. Townshend, 19 Vt. 267; Mann v. Clark, 33 Vt. 55; Hurlbut v. Green, 42 Vt. 316; Anderson v. Estate of Anderson, 42 Vt. 350, 1 Am. Rep.; Fulham v. Howe, 60 Vt. 351, 14 Atl. 652. The verdict shows that the jury must have found it to be at Fair Haven, and the exceptions state that after her brother’s decease the defendant remained there until March 17, 1902, a period of nine months, when'she left there and never returned. It does not appear that all the evidence bearing on the question of her removal at that time is shown by the bill of exceptions, and as before seen no part of the transcript of the testimony is before us thereon. We cannot say therefore as a matter of law on the record before us that she made such a removal from Fair Haven to Granville as to constitute a change of her domicile to the latter place before the first day of April following, and consequently in overruling the fourth ground of the motion error does not appear.

It follows that the defendant’s standing on the record is that of a resident taxpayer, and the other questions presented must be determined accordingly.

Parol evidence given by two of the listers was admitted subject to exception showing in what manner the listers made up the defendant’s list in question: that the defendant not filling out an inventory as required by law, they “ascertained by means of reports of offsets claimed by other taxpayers in their inventories, reports of sundry persons in answer to inquiries of the listers themselves, and reports of sundry persons in answer to inquiries of Mr. Raymond, acting as attorney for the listers, that the defendant had debts due her to the amount of $33,740; that she had live stock on a farm in Fair Haven which the listers appraised at $650; and that she had real estate in that town standing in her name which stood on the quadrennial valuation of real estate for 1898 at $11,850; that the listers then added together these three items including “the amount at which the real estate standing in her name stood in the quadrennial valuation of 1898 without any appraisal of its value by themselves,” the amount so obtained being $46,240, which amount they doubled making $92,480. No assessment was made, and there was no poll. In these circumstances the statute provides that one per cent, of the amount obtained by doubling shall constitute the person’s grand list. P. S. 561. It is argued that the action of the listers in making up the list of a recusant taxpayer must be shown by the abstract of the individual lists required by law to be lodged in the town clerk’s office for the inspection of taxpayers, and by the completed grand list. We do not think however that this need be shown by either. The requirements of the statute (P. S. 565) regarding such abstract are the same whether the list of a taxpayer be based on an inventory, or be made up by the listers according to the provisions of law (P. S. 561) because of wilful omission to return an inventory. It has been held that the abstract need not contain a schedule of all the estate appraised as belonging to the taxpayer, with the sum at which each article is appraised. Taylor v. Moore, 63 Vt. 60, 21 Atl. 919. On the reasoning of that case it is clear that it need not contain in detail the action of the listers in making up the list of a recusant taxpayer. The purpose intended, as there declared by the court, namely, to have deposited in an accessible place information from which every taxable inhabitant can ascertain, at least, the amount of his .list derived from his estate or property, and also the amount set to him, as compared with the several amounts derived from such property set to other taxable inhabitants of the town, is served without such detail. The abstract in question shows severally the appraisal of the defendant’s different pieces of real estate, also of her personal property, and that such appraisals doubled were taken in the aggregate as her total real and personal estate. Nothing more is required by the law in this respect.

It is further said that the law relating to the doubling process does not contemplate doubling each item going into the list to make up the full amount of the taxpayer’s personal property, not does it contemplate any classification into real and personal property, or distribution of property on account of its location. But herein the law of such procedure should be construed with reference to the statute specifying to whom, and where in respect to municipal and qitffsi-municipal corporations, taxable real estate and personal property shall be set in the list (P. S. 503, 510) ; also with reference to the required particulars of the completed grand list. P. S. 571. The law of these sections is applicable whether the list of a particular taxpayer be based upon an inventory by him properly made out and returned, or be made up by the listers under the statute. By the section last cited, where there is no poll and no deductions, as in the case before us, the completed list shall contain the quantity of real estate owned by the taxable person, specifying the class to which it belongs and the village, school and fire district in which it is situated; the value of the person’s personal estate; and one per cent, of the value of such real and personal estate shall be his grand list for the assessment of taxes. Like the abstract, the completed list is not required to show the different steps taken by the listers in making the list of a recusant taxpayer. And it being a matter not necessary to be shown by either, we have no doubt that the parol evidence was properly received for that purpose.

It is said that the items of real estate were transferred directly from the quadrennial appraisal without consideration by the listers and that this procedure was unwarranted by law. By P. S. 555, ‘ ‘ The real estate in the last quadrennial appraisal, taxable to a person duly filling out, swearing to and returning an inventory, shall be appraised by the listers at the valuation established in such appraisal”; and then additions or deductions may be made in circumstances mentioned therein. By section 556, ‘ ‘ If any real estate taxable to such person was omitted from the last quadrennial appraisal, the listers shall appraise the same at its value in money, subject to the rules directing the quadrennial appraisal of real estate.” It will be noticed that the law of these two sections by express terms applies only to real estate "taxable to a person duly filling out, swearing to and returning an inventory.” It has no application when the real estate is taxable to a person who wilfully omits to return such an inventory. Then the listers are required to ascertain as best they can the amount of taxable property of the person without regard to character, appraise the same including the real estate at its value in money and double the amount so obtained. See Bartlett v. Wilson, 60 Vt. 644, 15 Atl. 317; Rowell v. Horton, 58 Vt. 1, 3 Atl. 906; Howes v. Bassett, 56 Vt. 141. It is urged by the plaintiff that in Bartlett v.- Wilson a like action by the listers in taking a former appraisal of the real estate of the recusant taxpayer was sanctioned. True there the real estate was taken at its appraisal the preceding year, and that item and the amount of the assessment for money' and debts due were doubled for the person’s grand list. Yet the question of the right to take such appraisal was not raised. The opinion states that “no question was made upon trial as to the proceedings of the listers save the doubling of the appraised value of the real estate. ’ ’

In the case at bar, as before seen, it appears that the listers, in making up the defendant’s list, instead of appraising the real estate themselves, took the valuation established in the last quadrennial appraisal. J This was unauthorized in law, and the list when made up was not their judicial determination arrived at in the way pointed out by statute. Consequently the grand list of the defendant to the extent of the real estate is illegal; but whether her whole list was thereby rendered invalid it is unnecessary now to consider (see P. S. 606), since our holdings on certain other questions require a reversal of the judgment'.

It is also contended that the item of debts due the defendant is simply an arbitrary assessment by the listers, that is, there are no choses in action shown as appraised. This question we do not decide.

The statute provides that on the first Tuesday in May the listers shall meet at some place to be appointed by them and shall on that day, and from day to day thereafter, hear persons aggrieved by their appraisal or by any of their acts, until all applications are heard and decided and the list corrected accordingly. Notice of the place of hearing shall be posted in the town clerk’s office and in two other public places in the town on or before the 25th day of April. P. S. 566. It appeared that at some time one of the listers posted in the town clerk’s office, in the postoffice, and in the Hotel Butledge, all public places in Fair Haven, notices with regard to a meeting of the board of listers to hear grievances, and that the meeting was held May 16, at the town clerk’s office. The evidence tended to show that the notice was posted in the postoffice within the time required by law, but there was no evidence as to the time when the notices were posted in the other two places, nor tending to show that any of the notices posted stated the place of hearing. The law particularly specifies that “notice of the place of hearing” shall be so given.

On May 7, 1902, the listers left a written notice, signed by them and addressed to the defendant, under the outside door in the ell part of the house on River street in Fair Haven from which she had departed March 17, 1902, of the fact that they had made up a list against the defendant, and how, and the amount thereof after doubling, also of a meeting to be held by the listers at the town clerk’s office in Fair Haven, May 16, 1902, at 2 o’clock P. M. to hear persons aggrieved by their appraisal or by any of their acts. But there was no evidence tending to show that this notice, or any information concerning, it, ever came to the defendant’s knowledge. Whatever the effect might have been had she received this notice, or had knowledge thereof, in season to appear and be heard before the listers at the time and place named, as the case stands any shortage in the notices of such meeting required by law to be posted was not aided thereby. The statute regarding the posting of such notices is mandatory, and a compliance with its provisions is essential to the validity of the list. There being no evidence tending to show such compliance it was error to receive the grand list in evidence, and the defendant’s motion for a verdict should have been granted on the fifth ground stated therein.

No question is made but that a vote previously taken by the town of Fair Haven to collect its taxes by its treasurer was in force throughout the year 1902. The plaintiff’s evidence tended to show that the tax book was received by the treasurer from the selectmen July 10, 1902; that the treasurer published in the “Fair Haven Era” for three weeks a notice “that the tax books had been placed in his hands for collection.” Further than this, as to when the notice was dated, or published, or what were its contents, there was no evidence. The evidence further tended to show that the treasurer posted some notices in the First National Bank, the Allen National Bank, and F. H. Shepard’s store, all public places in Fair Haven; but'there was no evidence tending to show the dates when these notices were posted, nor anything as to their contents, nor what they referred to; nór was there any evidence, further than above mentioned, tending to show either actual or constructive notice to the defendant of the assessment of the tax sued for against her, or of the time and place when and where payable. On receipt of the tax bills it was the duty of the treasurer by statute to post notices in at least three public places and publish the same for one week in-the public newspapers of the town, if any were there published, “calling upon the taxpayers to pay their respective taxes within ninety days from the date of said notices,” and at the expiration of such ninety days to issue his warrant against the delinquent taxpayers for the amount of all their taxes payable to him, returnable in sixty days from the date thereof, and deliver the same to the collector of the town. Y. S. 481, 482. A compliance with the provisions of the statute in these respects was prerequisite to the treasurer’s authority to issue his warrant against the defendant, as a delinquent taxpayer, and proof thereof is essential to the plaintiff’s right of recovery. Since as before seen the evidence did not tend to show such compliance, the receipt of the treasurer’s warrant in evidence was error.

Judgment reversed and cause remanded.