Phelps v. Thurston

Carpenter, J.

The plaintiff resides in the city of New *484 York. He owns a farm in the town of Simsbury in this state. In the year 1877 he handed to the assessors of Simsbury a list of what purported to be his taxable property in that town, under oath. That list contained his real estate in Simsbury and a few items of personal property owned by him there. The assessors added to the list three horses and four carriages, all valued at $800, and gave the plaintiff notice. He paid no attention to the notice, and in due time the collector presented the taxes assessed against him, including taxes for the personal property thus added by the assessors. He refused to pay and the collector levied on the personal property described in the declaration and sold it.

This suit is trespass for taking and selling the property, and is brought against the selectmen. The court below rendered judgment for the plaintiff to recover the value of the property.

The defendants allege two grounds of error; first, that all the property was legally assessed, and second, that the defendants are not liable in trespass.

1. It is conceded as a general rule that the personal property of a non-resident is not taxable. But the defendants insist that the plaintiff himself submitted all his personal property in Simsbury to the jurisdiction of the authorities of that town for the purposes of taxation, and that he cannot now be heard to complain that it was not taxable. In support of this claim Goddard v. Seymour, 30 Conn., 394 , is cited.

In that case the plaintiff was a non-resident. His agent in Seymour included in his list one item of personal property valued at $20,000. The assessors raised its valuation, so that it finally stood at $30,000, and the tax was assessed and collected accordingly. Assumpsit was brought to recover it back. The court held that it was properly assessed on the ground that he had submitted the whole matter, including the valuation, to the jurisdiction of the assessors and board of relief.

« That case seems to have been well considered, and if this case was strictly analagous we might feel constrained to apply it. But between that case and this there is one important difference—in that, the assessors increased the valuation *485 of an item which the plaintiff put in his list, thereby placing it within their jurisdiction—in this, the assessors added property which the plaintiff did not put into his list, and over which they had no jurisdiction. We are disposed to regard this distinction as material.

If the plaintiff chose to consent that any portion of Ms personal property might be taxed in Simsbury he had a perfect right to do so; but his right was equally good to limit the portion so to be taxed, and he did so limit it. By exceeding that limit the assessors exceeded their jurisdiction.

It is further claimed that the plaintiff, by omitting to apply to the board of relief, and to appeal to the Superior Court under the statute of 1878, has waived his remedy, and has now no redress. The act of 1878 did not take effect in season for the plaintiff to have availed himself of it. The fact that he might have applied to the board of relief and failed to do so is no bar to a suit to redress a wrong inflicted by collecting an illegal tax. Otherwise the plaintiff would be deprived of his day in court, which he is clearly entitled to.

We think the court below correctly decided that the tax was illegal to the extent of the additions made by the assessors.

2. Are the defendants liable in trespass? The court below, upon the authority of The Thames Manufacturing Company v. Lathrop, 7 Conn., 550 , held that they were. We think that case is distinguishable from this and ought not to control it. The defect in that case was the omission of the assessors to return the list to the town clerk within the time prescribed by law, so that the illegality extended to the entire list. In tins case the assessment list as a whole was regular, formal and legal. The objection is that two small items constituting a small fraction of the plaintiff’s list were improperly taxed. In the former in contemplation of law there was no assessment list, nothing to require or justify a rate-bill. In the latter there was a legal and valid list, (including in it property exempt from taxation or omitting property which was taxable did not vitiate it)—a list which required and would therefore justify a rate-bill. A list abso *486 lutely perfect, including everything taxable, and nothing not taxable, is well nigh an impossibility. From necessity therefore such additions and omissions cannot vitiate. It follows that the selectmen could not for any such reason excuse themselves for neglecting to sign a rate-bill, being required to sign one by positive statute law enforced by a suitable penalty.

It would be absurdly unjust thus to compel them to sign a rate-bill and hold them liable therefor in trespass on account of mistakes and errors of the assessors and board of relief, officers over whom they have no control, and whose mistakes and errors they have no power to correct.

It does not follow that the plaintiff is without remedy. He might when threatened with the levy have paid his tax, nine-tenths of which was justly due, and then, if he had been compelled to pay more than was just, an action of assumpsit against the town would have been a plain and effective remedy.

In holding the selectmen liable the court below erred, and the judgment must be reversed.

In this opinion the other judges concurred.