Melvin v. Weare , 56 N.H. 436 ( 1876 )

FROM HILLSBOROUGH CIRCUIT COURT. The defendants object that the plaintiff is not entitled to be heard upon this petition, because he has not complied with the requirements of ch. 51, sec. 4, of the General Statutes. The plaintiff insists that this objection comes too late. No question is made that the plaintiff applied to the selectmen to abate the excessive tax of which he complains, and that this petition was seasonably filed in court because of the neglect of the selectmen to grant the relief prayed for. No objection was made, such as is now raised, when the petition was referred to a committee, nor at the hearing before the committee. All the facts were known to the defendants; and, if the defect were such that it could have been obviated if the objection had been taken earlier, it would be unjust to allow them to compel the plaintiff to incur the expense and trouble of a hearing, and take their chance of a favorable result, and, upon the coming in of the report, raise an objection which ought to have been raised in the outset. Wentworth v. Farmington, 51 N.H. 134, and cases cited. But the defect, which it is claimed exists here, is one that could not have been obviated if this objection had been taken earlier. There is no provision of the statute which allows the plaintiff to maintain this petition, unless he has complied with the requirements of the above-named section. But we have no occasion to inquire whether the objection is one that can be raised at this stage of the proceedings, or whether the defendants waived the objection by not making it sooner, because it appears the plaintiff did comply substantially with all he was required to do.

The statute above referred to — Gen. Stats., ch. 51, sec. 4 — requires every person liable to be taxed to exhibit to the selectmen, at the time and place appointed by them for receiving an account of the polls and taxable property in their town, or upon personal application to him by the selectmen, or either of them, a true account of the polls and estate for which he is there liable, either in his own right or otherwise, and on oath if required.

By sections 10 and 11 of chapter 53, the selectmen, for good cause shown, may abate any tax assessed by them or their predecessors. If they neglect or refuse so to abate, any person aggrieved, who has complied with the requirements of sec. 4, ch. 51, within nine months after notice of such tax and not afterward, may apply by petition to the supreme court in the county at a trial term (now circuit court), who shall make such order thereon as justice requires.

It seems the selectmen of Weare called upon the plaintiff "to ascertain from him what personal and real estate he owned in said town liable to be taxed." Nothing was said about his making a statement under oath. We may assume that the account he gave of his personal estate was correct, as no question is made about it. "He, upon inquiry, said that his real estate was the same as it was the year before." His answer was equivalent to saying he owned the same real estate for which he was taxed the year previous. What this was would appear upon the records of the town containing the invoice and assessment for 1873. If the selectmen had objected, perhaps a verbal account would be held insufficient. But no objection was made — at least, none appears. He was accordingly assessed upon the same real estate that he was assessed for in 1873. The defendants do not claim that he was taxable for any other, or that the account he rendered was false, or in any respect incorrect. Nor does the plaintiff claim that he was taxed for any property for which he was not taxable: he only complains that it was valued too high. From the way the case is drawn, we must understand that the selectmen were satisfied with the account he gave, and that Melvin understood they were satisfied to receive his statement for an account of his taxable property.

In Tucker v. Aiken, 7 N.H. 113, the account or statement made by him (Tucker) to the selectmen was not correct, in that he returned his bank stock at $2,000, when in fact he owned such stock to the amount of $7,000; and therefore it was held that he was properly taxed for $7,000. In Walker v. Cochran, 8 N.H. 166, a member of the plaintiff's family, in his absence, gave in, among other stock, one cow, and two heifers three years old. But the selectmen taxed him for two cows and two heifers. The jury found he had but one cow. The court held that as the selectmen received the invoice without objection, and never called upon Walker further or gave him notice to appear, they could not tax him beyond the invoice so given in, even if it was erroneous, unless upon a discovery of some fraudulent concealment.

There is nothing in this case which excludes the inference that the selectmen of Weare accepted the statements of Melvin as an account of his property liable to taxation, which they might require him to exhibit. The selectmen may seasonably give notice of a time and place to receive an account of the polls and taxable property in their town by posting advertisements, and they may also make personal application to any inhabitant for such account. The selectmen may give such public notice or they may make personal application to each voter; and they may do both or they may at their pleasure do neither. If the response made to the public notice is not satisfactory to them, they would probably resort to the mode of making personal application. But when they first make personal application to an inhabitant, and obtain from him a correct invoice of his taxable property, — one with which they are satisfied, and one with which he understands they are satisfied, — it would seem to impose upon him a useless labor to require him to appear again before them in response to a public notice to give in the same invoice a second time. In this case, I think Melvin might well understand, when the selectmen posted their notices dated April 13, that, in the absence of any intimation that they were dissatisfied with his invoice given in on the second of April, he was not expected and would not be required to render a second invoice. Having rendered an invoice that was correct, and one that was accepted, the statute did not impose on him the duty of exhibiting a second one.

The defendants also object that the plaintiff cannot maintain this petition because he did not show any good cause to the selectmen for abating any portion of his tax. There is nothing in the agreed case that shows how this was. The case finds, that "the first notice of dissatisfaction on the part of Melvin was an application for abatement by his attorneys," and "an application was afterwards made to the court, and referred to a committee." This petition, which is copied in the defendants brief, appears to be in proper form, is dated July 23, 1874, and no question is made but that it was seasonably presented. If the selectmen resided in different parts of the town, as those officers frequently do, it might be, if a case were presented, that we should feel compelled to hold it to be the duty of the selectmen to appoint a time and place for a hearing, rather than the duty of the petitioner, after filing his petition, to seek out each member of the board, or a majority of them, for an opportunity to be heard. The legislature could hardly have intended that the court should look into the evidence produced before the selectmen, to see whether there was "good cause shown." The abatement of a tax by selectmen is a judicial act, which cannot be revised except by filing a new petition in the circuit court, the proceeding being in the nature of an appeal. The necessities of the case will not admit of great delay in the preliminary proceedings.

I think it must be understood, that, when an application is made to the selectmen for the abatement of a tax, the applicant cannot reasonably be required to show cause for such abatement until they take some steps to afford him a hearing, and that an unreasonable neglect so to do will entitle him to apply to the circuit court for the relief sought. And further: it will probably be found, upon further examination, that these defendants have waived this objection by not taking it before this petition was referred to a committee.