Willard v. Wetherbee

Upon the trial of this cause the defendants relied upon two grounds of defence. In the first place they contended, that the plaintiff having refused, when they called upon him in person, to give a true account of his poll and rateable estate on oath, they set down to him byway of doomage the sum of $15,000, being in their opinion an equitable sum, as they were authorized to do by the third section of the statute of February 8, 1791. In the second place they contended that the plaintiff having given them an account only of 02000 money at interest and bank stock for which he was liable to he taxed, did not give in the whole, but endeavored to conceal a part from their knowledge, and that under the fourth section of the said statute they taxed him in all the taxes of the year four times as much as the estate so fraudulently concealed, would, if given in by him, by law have been rated or taxed.

In answer to the first ground of defence the plaintiff contended, that the defendants having called upon him to give an account of his rateable estate at a time when he was absent from home, he was not by law bound upon such a call to give a true account of his rateable estate upon oath, and that his refusal to give such an account could not under the circumstances legally subject him to be doomed under the third section of the statute ; and that his subsequent offer to make oath to the truth of his account before one of the selectmen was all he was by law bound to do.’

The instructions given to the jury on this point were in substance, that the plaintiff was bound to be ready to *124give an account of his rateable estate on oath at any place where the selectmen might request it ; that they were not bound to call upon him a second time ; that after they had once requested him, it was his duty to have gone to them and to have given an account on oath ; and that his offer to mate oath before one of the selectmen, who was unacquainted with the proper form of the oath to be administered, was not sufficient. And the first question in this case is whether these directions were correct ?

The statute enacts “ that the inhabitants of the several towns, &c. shall annually exhibit to the selectmen a just and true account of their polls and estates rateable by law. And the selectmen shall give warning, &c. of the time and place in such town when and where they will meet to receive such account; and the said selectmen may make personal application to the respective inhabitants of such town for an account of their polls and rateable estate, &c. ; and said invoice shall be taken of what the respective inhabitants shall be possessed on the first day of April annually, and shall be taken some time in the same month, &c. And if any person shall neglect after being duly notified, or shall refuse when called upon in person by any of the selectmen to give a true account of his poll and rateable estate on oath if required, &c. the selectmen may set down to such person or persons as much by way of doomage as they shall judge equitable and make the assessment accordingly.” 1 N. H. Laws 258—259.

We have attentively examined these provisions in the statute and have also considered the directions which were given to the jury, and are of opinion that the jury were correctly instructed on this point. It is well known to all the inhabitants of towns, that an inventory is to be taken annually in the month of April of all the taxable property of which they are possessed on the first day of that month. This must be known to all, because the law requires it, and because it is annually done. And we are *125of opinion,-that, it is the duty of all to be ready to give promptly a true account on oath ol' their taxable property whenever within that month and wherever the selectmen may request it. It is no part of the duty of selectmen, when they call upon an individual at his home, to tarry until he can examine his papers and make a calculation of his money at interest. They may do it if they choose, but it is no part of their duty. He is hound to he ready. .Much less is it their duty when they find him abroad to go home with him for the purpose. When they have requested him to give an account of his taxable property, they have done their duty, and it then becomes his duty to see that a correct account is given to them on oath. It is very obvious that any other rule would involve selectmen in endless embarrassment and trouble.

Cases may occur, where time should be given to an individual to prepare his account. But in such cases it should be distinctly understood that the selectmen have done all which the law requires of them, and that it is the duty of the individual, to whom time is given, to prepare his account and carry it to the selectmen, and there make oath to the truth of it if required. They are not to be held to call upon him a second time at the expence of the town. And if he fail from any cause after being once requested to give an account on oath, they have a clear right to set down to him by way of doomage as much as they shall judge reasonable.

In this case the plaintiff was duly requested to give an account on oath of his taxable property. At the time and place of the request he was not prepared to do this, but offered to do it if they would go with him to his house. This they declined, and told him that they should set down to him, by way of doomage, $15,000. They however informed him that he might afterwards exhibt an account on oath. Now in all this the conduct of the selectmen seems to us to have been fair and correct. It was certainly no part of their duty to go to the plaintiff’s house ; and it *126was clearly his duty to have been ready to give an account ofhis property on oath. But how was this conduct on the part of the selectmen met by the plaintiff ? Instead of making out an account and exhibiting it to the selectmen on oath, he casually met one of the selectmen and offered to swear that $2000 was the true sum. But that selectman, after making the attempt, was found not able to administer the oath — it was not administered and nothing further was ever done on the subject by the plaintiff. Was this all he was, under the circumstances, hound to do ? We think not. He was bound to find a selectman or a magistrate who could administer an oath and to take the oath required ; and he not having done this, his taxes for that year were, in our opinion, justly and legally assessed upon the sum set clown fay the selectmen by way of doomage.

We are therefore of opinion that the exceptions taken by the plaintiff’s counsel to the directions given to the jury on this point must be overruled.

But as the cause was submitted to the jury upon both the grounds taken by the defendants, it is necessary to examine the answer which the plaintiff gives to the other ground of defence. For if the plain till’ can give a good answer to either ground, there must be a new trial, because it is not known on what ground the jury found for the defendants.

The fourth section of the statute enacts, “that if any person in giving in an account to the selectmen of his estate rateable by law, shall not give in the whole ofhis estate so rateable, but shall conceal some part thereof from the knowledge of such selectmen, they may, for any estate so concealed and not given in, upon discovery of the fraud rate such person in all taxes of that year four times as much as such estate, if given in by the owner, would by law have been rated or taxed.” To the ground taken by the defendants that they were warranted in assessing upon the plaintiff the sum they did under this clause in *127the statute, because he had been guilty of a fraudulent concealment of his property, the plaintiff answers in the first place, that the defendants had no right to act under this clause of the statute until he had been heard before them as to the supposed fraud, and had had an opportunity to explain the transaction. It is undoubtedly a principle of natural justice that every man shall have an opportunity to be heard before he is condemned ; and to a hearing this plaintiff was certainly entitled, but not before the selectmen. They were in this business merely ministerial officers whose doings were valid only so far as they were warranted by law. He was entitled to a hearing before a court of competent jurisdiction and has availed himself of that right by bringing this action. A. hearing in this case is all the hearing to which he is entitled. ' There is no pretence that a hearing before the selectmen was necessary. It might as well be contended that the property of individuals cannot be legally taken by the sheriff on a writ, until they have had an opportunity to be heard,before him.

Another answer given by the plaintiff to this ground of defence is, that there was no evidence that the selectmen had any particular information of the sums concealed, or that they had discovered the fraud when they made the tax ; and as the statute authorizes them to act only “-upon discovery of the fraudf it does not appear that they had authority to act. It is manifest, that this answer is founded upon the supposition that the fraud existed, but it is denied, that the selectmen had any right to act upon it. And in order to ascertain the sufficiency of this answer, we must advert to the nature of the controversy. The plaintiff brought his action against the defendants on the ground that they had taxed him a larger sum than he ought by law to have been taxed. Their defence was, that he had fraudulently concealed a part of his property in giving them an account of it, which warranted them in assessing the tax. Now the question *128is, whether it is any answer to this defence, that it is not shown that the defendants had notice of the fraud when they assessed the tax ? We.think not. The question was, whether the plaintiff had committed a fraud which warranted the defendants in assessing the tax ? If he had, the tax was legal. The views and motives of the defendants were immaterial. They may have assessed the tax under a total misapprehension of the law and the facts ; yet still if the law authorized what they did, this action cannot be maintained. It was therefore wholly immaterial what information the selectmen had, or upon what evidence they acted. The question was not whether they had sufficient evidence of the fraud, but whether there had been a fraud, which justified the tax. The selectmen may have acted upon suspicion or conjecture. They acted at their own peril. It cannot be now made the subject of enquiry upon what evidence they acted. The only enquiry is, did they act legally ? If they did, the law will protect them, even though they may have so acted through misapprehension and mistake.

The plaintiff’s counsel have also urged as a further answer to this ground of defence, that the selectmen actually put down to the plaintiff $15,000 as bank stock and money; at interest, and assessed his tax accordingly; so that the tax appears by their records to have been made under the third and not under the fourth section of the statute.

But it must be recollected that this action is brought not for any irregularity in the mode of taking the invoice, or in the manner of assessing the tax, but for taxing the plaintiff more than he was by law to be taxed. This is the grievance stated in the declaration. And although the defendants may have actually proceeded upon the third section of the statute, we are unable to conjecture any good reason why they may not be permitted to show, that their doings were warranted by the fourth section of the statute also. In this case if the doings of the se-*129Jeetmen are legal, It is wholly immaterial whether they be so by accident or by design.

It has also been urged that the plaintiff was instructed that this ground could not be taken by the defendants, in consequence of which he did not come to the trial prepared to meet it. But it is now too late to raise this objection. If the admission of the evidence on this point was a surprise upon the plaintiff, he should have asked at the trial for time to meef it and according to the usual practice of the court might have had it. Rut he saw fit to take his chance with the jury upon the evidence as it. stood and must now be held to abide the result.

It has been further said that the plaintiff was not liable to be taxed for that portion of the money remaining in his hands as administrator which would on settlement of his administration account belong to him and which was upon interest. But no reason, why he should not be taxed for such money, has been suggested by counsel, nor has any occurred to us.

We are therefore of opinion that there must be

Judgment on the verdict.