State v. Fyler

Pakdee, J. The respondent asks us to adopt the rule requiring the public prosecutor alone to prosecute, where public rights are to be protected. But, as a citizen, the relator has an interest in having all public officers discharge their official duties according to law; as a tax-payer he has an individual pecuniary interest in the collection of all legally assessed taxes and in securing [158] to himself protection from compulsory contribution to deficiencies resulting from neglect of official duty upon the part of the collector. The fact that the representative of the state permitted him to appear of record as joining in the motion does not call upon us to deny their prayer. Again, the respondent insists that we should deny the writ because there is adequate remedy at law by suit upon his bond and by execution against his body and estate. But, the assessed corporation is able, and it is its duty, to pay the tax ; he is able, and it is his duty, to collect it. The' town and the relator each have the right to insist that he shall perform his duty according to law; and he is not to be heard to suggest that he can be punished for non-performance. Moreover, collection is certainty; the substitutes offered by him may each prove fruitless; neither is in any sense adequate. Again, he insists that the vote of the town absolved the corporation from the duty of paying, and himself from the duty of collecting the tax. This court has repeatedly declared that towns have no inherent powers; none except such as they have either by express grant or necessary implication. The State makes them its instruments in the administration of civil and criminal justice, in the construction and reparation of highways, in the maintenance of schools, and in the support of the poor. The requirement by the legislature is that they shall raise by taxation sufficient, and only sufficient, money to defray the expense attendant Upon the discharge of duties imposed or the performance of acts permitted; this to be estimated with all convenient certainty. When the prop'er officers have legally placed upon each individual his share of this public burden, the town has no power to lift it from him, he being of ability to pay, either in the form of abatement before, or in that of gift after collectioh; for, this being done, a deficiency would result, to be supplied by the imposition of additional assessment's upon others: and this is to violate the fundamental law of taxation, that it shall beat equally Upon all.- [159] Moreover, money being absolutely necessary to the existence of the government, taxes must be paid with promptness. To this end the legislature has provided a simple, economical and effective method; and the establishment of this, as a matter of- law, prevents the use or existence of any other; nothing remains to the town, the officers, or the individual but obedience. After the assessors have completed their valuation, it is subject to review and correction by the board of relief, which is vested with power to increase the items of taxable property in the list of any person, or the number, quantity or amount of any such item, upon hearing after notice. So far as this question is concerned, which is wholly one of valuation, that board was by statute the court of final resort; no appeal lay from its action. The assembled inhabitants of the town were without power in the matter, and for the wisest reasons; the power to release one person of ability to pay, from payment of a lawful tax, is the power to release others—to release all; and that means the nullification of proceedings for the assessment and collection of taxes as often as they may be instituted. The power to diminish the burden imposed upon one implies the power to increase that of another; this means the usurpation by the town of powers vested solely in the board of relief. The statute giving to that board power to review the entire assessment list and to increase or diminish individual assessments, is in effect the prohibition of the town from action thereupon. The Superior Court is advised to grant the writ prayed for. In this opinion the other judges concurred; except Carpenter, J., who dissented.