Henry v. Town of Chester

Mere circumstantial errors in the details of making up the grand list, will not render it Void, as a basis of taxation. The list will not be rendered void by any error of judgment in the listers, in a matter properly within their discretion. If the appraisal of real estate by the listers be not submitted to the supervision of the county and state committees, or if such alterations as they require, are not made, the list is incomplete, and an assessment of taxes thereon, void. The persons who may have been compelled to pay taxes to the town, assessed upon such list, may recover back the full amount, in an action of assumpsit for money had and received.

This was an action of assumpsit, for money had and received. Plea, non assumpsit, and issue to the court. By consent of the parties, the case was referred to a commissioner, to make report of facts. The commissioner reported, among other things, that the plaintiff’s claim rested on the ground that the town of Chester had collected from him a large amount of taxes which had been assessed upon his property, in connexion with a general list of the town, improperly made up, in that the addition to the appraisal of houses and lots, which had been adjudged by the county averaging committee, and the addition to the appraisal of lands, adjudged by the state averaging committee, had not been made by the listers, although the same had been seasonably certified to them, while ten per cent, was deducted from the original appraisal of buildings and lots — by reason whereof, the taxable property of the plaintiff, consisting principally of personal estate, had been subjected to a disproportionate assessment in making up the taxes for said town.* The plaintiff insisted that, upon the facts reported, he was entitled to recover the amount of the taxes paid by him to the town, as stated in the report, together with the interest thereon, amounting to $736.36. The court rendered judgment in favor of the plaintiff, for the said sum ; to which decision the defendant excepted. I. The proceedings of all tribunals, or authorities, acting within the sphere of their jurisdiction, and good on their face, are never void, as to third persons, however irregular or voidable. When the action is by, or against, the person exercising such authority, then the regularity of its exercise may be questioned ; and, also, when proceedings are taken to avoid or correct such proceedings — as error, certiorari, quo warranto, &c. One example will suffice to illustrate this principle — viz, that of military officers assessing and collecting fines. If the person is exempt, permanently, from duty, or not living within the beat of the officer, he is not subject to^his jurisdiction, and all proceedings in such case are coram nonjudice ; and the officer, and all acting on his authority, are wrong doers. But if the person be subject to his jurisdiction, the irregularity of the proceedings will not vitiate them or effect third persons. So far have courts carried this, that all proceedings of officers, de facto, are held good as to third persons, however defective are the qualifications of such officers. Our court has held that an acting justice, though when appointed, and still, post-master, may proceed with a cause, though this be objected, in the first stage, in abatement. II. The listers have the jurisdiction of making up, and completing the grand list; and all real estate situated in the town, and all persons residing in it, with their personal property are the subject matter, and, while so situated, are within the jurisdiction of the listers for that purpose; and no matter of error, or overcharge, or putting too much into the list, as to a man residing in town, will render the proceeding void, or, in any way, affect any persons except the listers themselves. This is true in the analogy of legal principles, and is the only practicable method of carrying into effect the listing law, and many other of our important municipal regulations. Particularly must this be so, iri all cases where the proceedings are apparently regular. III. In this case, the list was good on its face. The plaintiffs’ land was in the town, and he there resided, and therefore the whole subject matter was within the jurisdiction of the listers. The particular neglect now complained of, that is, not adding the ordered per centage to the land and buildings, is in no sense different from a neglect to put in a farm, or even personal property of a resident. It is insisted by the plaintiff, that it is different, and more important, because the statute provides that after the averages are made by the committees, then the listers shall proceed to finish their lists as a previous section had directed. We cannot see the force of the argument. It is indeed true, that it is the last act that finishes anything, but that is not, therefore, of any more importance than any other act in the process. The statute uses the words, “ Shall then proceed to finish the lists,” &c., only as matter consecutive, as they could not, till then, complete them or return them to the town clerk’s office, as before directed. IV. We insist there is no adjudged case to sustain the doctrine that the list is, for such a cause, void. In examining the cases in Massachusetts, it is to be recollected that, there, the assessors make the list, and, also, assess the tax ; and, therefore, if they proceed unlawfully, in either, trespass may be sustained against them. All the cases in Massachusetts, against assessors, and all actions on the case in Connecticut and Vermont, against listers, do not, at all, assist the plaintiff in this action, for we grant he could have such action here against the listers, for any neglect of duty, to recover all he has lost thereby. The cases of Lillie v. Burnham, 15 Mass. 144, and Thayer v. Stearns, 1 Pick. 482, were both against the assessors, and, of course, do not sustain this action. The cases in 10 Mass. R. 514, and 17 do. 461, were against towns, but the judgments were under a rule, by consent, and the point was, that a corporation was not subject to pay a tax on personal property ; that is, was not in .the jurisdiction of the assessors to be taxed at all. On neither of these points are they any authority for the plaintiff. The case of Sumner v. Dorchester, 4 Pick. 361, was a judgment against a religious society, for a tax collected of a man never a member, and so never within the jurisdiction. The case of Preston v. Boston, 12 Pick. 7, was a judgment for a tax collected of a man, on personal property, he never residing in the city ; and in that case it was held that for overcharge, as in this case, an action would not lie against the city. The case of Nelson v. Medford, 7 Pick. 18, was an action on the vote of the town, to repay the lister what he paid out to those who complained of the tax, and does not affect this case. Little v. Merritt, 10 Pick. 543, was an action against assessors; and besides, it decides that no action could be maintained against the school district who received the money' As to the cases in Connecticut: — Atwater v. Woodbridge, 6 Conn. R. 223, was an action against a town for a tax collected on a list against a religious society, not subject to any tax, and so not in the jurisdiction of the listers. The case in 7 Conn. R. 550, was trespass against the selectmen — they having assessed a tax on an unlawful list, inasmuch as the listers did not return their list in time for plaintiff to appeal to the board of relief. This is an extraordinary case, but clearly does not sustain this case. In Adams v. Litchfield, 10 Conn. R. 127, the list was, as it respects the plaintiff, defective on its face, as the court held the $5000, added by the board of appeal, not specific enough to call it money at interest, and so the selectmen had no power to assess the tax thereon, and it was, therefore, void. Landon v. Litchfield, 11 Conn. R. 251, was against the town, for a tax collected on land exempt, so that the subject-matter was not within the jurisdiction of the listers. The plaintiff cites Jamaica v. Guilford, 2 Chip. R. 103; Brookline v. Westminster, 4 Vt. R. 224 ; and Poultney v. Wells, 1 Aik. R. 180. Perhaps these are cited to show that, in an equitable case, indebitatus assumpsit should be sustained against a town. But this is not an equitable case as against the defendant, because — 1. Plaintiff claims tore-cover all he has paid, and to avoid, entirely, contributing to the taxes. 2. It is inequitable that the defendant should pay, as the town has no mode of redress except to assess the. amount paid, on the new inhabitants, who will have received no part of the money. 3. The town has received, in the whole, no more money than if the additions had been made to the list. 4. If the plaintiff can recover, every man in town can recover, and thus the taxes of five years will be thrown onto the present and future inhabitants. Such, and even worse, must be the effect of holding this list void. V. The person, and subject-matter, being within the jurisdiction of the listers, and the list apparently perfect, the only remedy is for neglect or misfeasance against the listers. VI. But even if the list was void, in the action for money had and received, the plaintiff should recover only what the defendants could not equitably retain — that is, the part only which he should not have paid. VII. But the payments by the plaintiff were voluntary, and not under any protest, and therefore not recoverable. Colman v. Anderson, 10 Mass. R. 105 ; Salem v. Danvers, do. 518 ; Adam v. Litchfield, 10 Conn. R. 127 ; Preston v, City of Boston, 12 Pick. 7. 1. The neglect of the listers to add the sums ordered by the county and state averaging committees to the list of 1832 made void that list, and all subsequent proceedings founded thereon. Until these additions were made, the list was inchoate, and taxes could not be assessed upon it. Revised Statutes, 545, §18; Thames Man. Comp. v. Lathrop et al. 7 Conn. R. 550 ; Sibley v. Burnham et al., 15 Mass. R. 144; Thayer v, Stearns, 1 Pick. 482; Thurston v. Little et ah, 3 Mass. 429; Torrey v. Millbury, 21 Pick. 64. 2. The legality of a tax may be tried in this form of action, and if it is shown that the tax is void, the amount may be recovered back. Jamaica v. Guilford, 2 D. Chip. 103; Poultney v. Wells, 1 Aik. 180 ; Brookline v. Westminster, 4 Vt. R. 224 ; Stevenson v. Mortimer, Cowp. 805 ; Salem Iron Factory Co. v. Danvers, 10 Mass. R. 514; Amesbury Man. Co. v. Amesbury 17 do. 461 ; Sumner v. Town of Dorchester, 4 Pick. 361; Inglee v. Bosworth, 5 Pick. 498; Nelson v. Milford, 7 do. 18 ; Little v. Merrill, 10 do. 543 ; Preston v. Boston, 12 do. 7 ; Baker v. Allen et al., 21 do. 382; Joy v. County of Oxford, 3 Greenl. 131 ; Gardiner Fac. Co. v. Gardiner, 5 do. 133 ; Atwater v. Town of Woodbridge, 6 Conn. R. 223 ; Adam v. Toivn of Litchfield, 10 do. 127 ; London v. same, 11 do. 251. 3. But if it were held that the list was not void, still, the plaintiff may recover what he has been compelled to pay, over and above his proportion of the taxes, as the town, in justice and equity, have no right to retain it. Listers and selectmen are the agents of their respective towns, and the towns are responsible for their acts and omissions, while acting within the scope of their agency. By the neglect of duty on the part of the listers of Chester, the plaintiff has been compelled to pay more than his due proportion of the taxes of that town ; and now it is insisted that, although the town have had and used the plaintiff’s money, they are not liable for it, and that his only remedy is against the listers, who may be dead or insolvent. This cannot be law. Clark v. Corporation of Washington, 12 Wheaton, 40. 4. The payment of the taxes was not voluntary. When demanded they were paid to the collector, who had rate bills and -warrants, regular on their face, authorizing their collection. The plaintiff could not test their validity, nor prevent the officer’s taking his person or property for the amount, without payment. - When mesne process is served on one, and he pays a sum of money to compromise the claim, as a general rule, he cannot recover back the amount thus paid, however unfounded the claim, as the law which creates the pressure supplies the defence. Instead of paying the money, he should contest the plaintiff’s right to it, by defending the action. But when a payment is made on a process in which the right cannot be tried, the principle does not apply. The true principle seems to be this —that when money is paid to an officer on a warrant, or any final process, regular on its face, and on which payment may be enforced by a levy on the person or property, such payment must be treated as compulsory. Amesbury W. fy C. Man. Co. v. Amesbury, 17 Mass. R. 461 ; Preston v. City of Boston, 12 Pick. 7 ; Bill v. Street, 5 Bing. 37 ; 15 C. L. R. 358; Snowden v. Davis, 1 Taunt. 358 : Irving v. Willson, 4 Term R. 485 ; Leiois v. Hammond, 2 B. & Ad. 206 ; Stevenson v. Mortimer, Cowp. 805 ; Cadaval v. Collins, 4 Ad. &, Ellis, 858 ; 31 C. L. R. 206 ; Duper v. Keeling, 4 C. & P. 102 j 19 C. L. R. 295 ; Morgan v. Palmer, 2 B. & C. 729 ; 9 C. L. ft. 232; Smith v. Caff, 6 M. &. S. 160, cited by Kelly in Willson v. Ray, 10 Ad. & Ellis, 82; 37 C. L. R. 51 ; Chase v. Dromvell, 7 Greenl. 134; Bates v. Thr. U. G. In. Co.-, 3 Johns. Cas. 238; Ripley v. Gelsten, 9 Johns. R. 201 ; Clinton v. Strong, do. 370. 5. When the plaintiff paid the taxes, he had no knowledge of the illegality of the lists, nor could he have ascertained, by mere inspection, that the additions had not been made as ordered. The payment, then, was made under a mistake of the facts ; that is to say, without any knowledge that the lists had not been corrected. On this ground, the plaintiff has a right to recover. Miles v. Duncan, 6 B. &. C. 671 ; 13 C. L. R. 293 ; Whitcomb v. Williams, 4 Pick. 228; Wait v. Leggett, 8 Conn. 195; Franklin Bank v. Raymond, 3 Wend. 69; Burr v. Verder, do. 412 ; Hodgson v. Williams, 6 Esp. Cas. 29 ; Canal Bank v. Bank of Albany, 1 Hill’s R. 287 ; Walker v. Hill, 17 Mass. 380. 6. No demand on the town for the repayment of the taxes was required to enable the plaintiff to sustain this action. Utica Bank v. Van Gensen, 18 Johns. R. 485.