Biss v. Town of New Haven

Cole, J. The statute made it the clear duty of the overseer of highways to give the plaintiff at least three days’ notice of the time when, and place where, he must appear and pay his highway tax in labor. Tay. Stats., ch. 19, § 41, p. [607] 486. The tax due in labor conld not be converted into a tax payable in money, except upon such notice given, and default of the plaintiff to appear and work at the time and place specified in the notice. Sec. 47. The statute is mandatory in character, prescribes a way for collecting the highway tax in money, and the giving of the notice is essential and jurisdictional. “ The opportunity to work them out is a condition precedent to the right of collection by legal process,” says the supreme court of Pennsylvania, in Miller v. Gorman et al., 38 Pa. St., 309; and we have no doubt of the correctness of the remark. Upon the same subject Judge Cooley remarks, that “ it is not a mere irregularity when one is denied his legal right to work out a road tax, and the amount is demanded in money,” but the objection is fundamental, going to the very ground-work of the tax. Cooley on Taxation, p. 541. That is to say, the assessment of the tax under the circumstances was not merely erroneous, but was void. For it must be assumed that the justice found from the testimony that no notice was given by the overseer to the plaintiff to appear and work out his tax; consequently the power to collect it on the warrant issued wholly failed. The overseer had no right to return it as unpaid, and the town clerk had no right or power to enter it as delinquent on the assessment roll. Jurisdiction over the subject matter was wholly wanting, and the money tax was entirely unauthorized in law. Such being the case, there can be no doubt that the-plaintiff could maintain an action against the town for the money illegally collected of him. Matteson v. Town of Rosendale, 37 Wis., 254. The justice rendered judgment in favor of the plaintiff, and against the defendant, for $5.00 and costs. The town then took the case by appeal to the circuit court, where the judgment of the justice was affirmed. It is to be regretted that the matter was not suffered to rest there, and that the town did not refund the money, which, in equity and good conscience, it had no right to retain. Bringing a case involving [608] so inconsiderable an amount to this court, betrays rather an excessive fondness for litigation, than a desire or willingness to abide by the principles of justice and good order. By the Gov/rt. — The judgment of the circuit court is affirmed.