Downing v. Roberts

The opinion of the court was delivered by Poland, J. The views we entertain in this case render it unnecessary for us to express opinions upon all the points, which have been raised and discussed at the bar. [445] The defendant insists, in the first-place, that, inasmuch as he acted under a rate bill and warrant legal upon its face, they furnish a sufficient justification to him for taking the property of the plaintiff. This doctrine has been denied by repeated decisions in this state, — especially by the recent case of Collamer v. Drury, 16 Vt. 574, where, in an action similar to this, it was expressly decided, that a collector could not justify the taking of property, merely by showing a regular tax bill and warrant, but must show all the previous proceedings to have been legal. It was said by the court, in the case of Henry v. Chester, 15 Vt. 460, that the legality of a tax would not be affected in consequence of any mere circumstantial error, or defect, in the making up the list, or in consequence of any error of judgment in the listers, in on which the taxes in the hands of the defendant against him could be assessed ? If he had not, clearly the justification set up by the defendant must fail. The exceptions state, that the plaintiff gave evidence tending to prove, that when the listers returned the list to the town clerk’s office, in December, 1845, as complete, as required by the statute, the names of the plaintiff and several other persons were not upon the list, and that when the tax bill and warrant were made out and delivered to the officer for collection, they contained no taxes against the plaintiff and those other persons, and that about the first of April, 1846, either the selectmen, or one of the former listers, inserted the names of the plaintiff and those other persons in the list, and also in the rate bill; — and for the purpose of deciding the question, we are to consider those facts as proved. The eleventh section of the statute of 1842, in reference to the grand list, requires the listers to complete and return the list, as [446] finished, to the town clerk, on or before the first Monday in December in each year; and although in the case of Henry v. Chester a doubt was expressed, whether the list, or taxes raised upon it, would be void, merely because the listers might neglect to return the list to the town clerk’s office until after the required day, (upon which question we give no opinion,) yet we think, when the time has elapsed, and the list has been returned as completed by the listers to the town clerk, that it then becomes the basis of taxation for the ensuing year, and that neither the listers themselves, nor the selectmen, nor any other person, has any legal power to make any alterations in such list, or to make any additions thereto. If it may be altered or added to after such time, it may be done at any time during the year; and instead of the permanent and certain basis of taxation, thus open and public to all concerned, the whole matter would be thrown into uncertainty and confusion, and the whole object of the law, in its numerous and careful provisions, entirely lost. It is very strenuously urged, however, by the learned counsel for the defendant, that, inasmuch as the property set in the list to the defendant was real estate, which was apprised and set to him in the list of 1842, and also in the lists of 1843 and 1844, the plaintiff had a legal list in the town, upon which taxes might be assessed against him, although his name did not appear in the list of 1845, upon which these taxes were assessed. But we think this view wholly unsound, and in direct conflict with the various provisions of the statute on this subject. The law requires all the taxable property of the inhabitants to be put into the list each and every year; and in this respect there is no difference between real and personal estate. The only difference, in relation to making up the list upon the two species of property, is this, that while all personal estate undergoes a valuation each year, real estate, being fixed and permanent in its character, and less fluctuating in value, is only valued every fifth year, and is to be set in the list each year after, to whoever may be its owner at that time, at that valuation, subject to certain additions for improvements and deductions for loss. There is never but one legal list in existence at the same time, which is the current list for the year ; and it is very evident, that the legislature intended such list to be complete and perfect in itself, without refer [447] ence to any other or former list, and that it should show upon its face all who were liable to taxation for that year, and the amount of each inhabitant’s list. The law in relation to the appraisal of real estate merely provides, that the valuation shall be the same for five years; not that it shall be set in the list to the same person during that period; but if it be true, that the list for the year of the appraisal of real estate is to be the list for the five succeeding years, as to the real estate, then the taxes must be paid by the same person, who owned it when appraised. As we view the law, on the first Monday in December, each year, the list of the previous year becomes entirely null and inoperative as a grand list, or basis of taxation, and the new list comes into legal existence, as a grand list, and no taxes can thereafter be legally assessed against any person, upon any such former list, whether it be for real or personal estate, unless it be brought forward and properly inserted in the new list. For these reasons we think, that, if the facts, which the plaintiff’s evidence tended to prove, were established, the plaintiff had no legal list in the town of Washington, at the time the taxes in question were assessed against him, and that therefore the taxes were void, and furnish no justification to the defendant, the collector, and that the court below should have adjudged accordingly. The judgment of the county court is reversed and a new trial granted.