Hunt ex rel. Clark v. Lee

The opinion of the court was delivered by

By the declaration and pleadings, it appears that the plaintiff is an infant and an idiot, residing in the town of Vernon, placed under the guardianship of Mr. Clark who resides in the town of Brattleboro, that she was assessed by the defendants, as listers of the town of Vernon, for money on hand, or money and debts due, in consequence of which, there has been collected from her, for taxes, the sum of twenty four dollars, by imprisonment of her person. The question is, whether a person like her, is liable to be thus assessed. The general terms of the act declaring that the polls, estate and property of the inhabitants of this state, shall be set in the list and be liable to the payment of rates or taxes, are sufficiently comprehensive, to embrace the case of the plaintiff. It is highly reasonable that she, who in her helpless state enjoys the protection of the government, for her person and property, should, if of sufficient ability, contribute towards the expense of maintaining the government. Still, if the legislature have not provided for such cases, or if the law which they have enacted, cannot be extended to a case like the present, without manifestly violating plain and obvious principles, it is not for the court to supply the omission. If the system providing for the assessment and collection of taxes, is not applicable to a person situated like the plaintiff, it belongs not to the court to make a different system, for the purpose of meeting the contingency, however just, proper or equitable it might be. If by the generality of the terms of the statute, the plaintiff may be considered as within the letter, yet, if she is absolutely and utterly unable to comply with its requirements, and cannot have the same *304remedy and redress, if she is injured, which other citizens have, the “ violence of the letter,” must be mitigated by a reasonable construction, and it must be considered that the legislature designedly omitted to subject her by the general terms made use of. It was said by Plowden, that when “ Acts of Parliament enjoin the doing of any thing which “ requires sound and perfect reason in the execution of it, “ the makers of the act do not intend it to be done by “ those who have not perfect reason, for if so, their law “ would be utterly against reason, for to insist that an infant “ or man of unsound mind, who have no reason, but live in “ ignorance invincible, shall use reason, or else lose their in- “ heritance, would be very unreasonable, which is never to “ be presumed of the legislature.” The plaintiff is an idiot, presumed in law, not to have any understanding or glimmering of reason, and never likely to obtain any. If she is liable to be assessed and taxed, she may be imprisoned for nonpayment, she must submit to such assessments as may be made, and cannot avail herself of any of the provisions of the statute, in case of an improper or unjust assessment. The payment of the tax, must be enforced against her, personally, as there is no other mode of collecting taxes, except by levy on the property, or body, of the person set in the list.

On examining the act, in relation to the principles on which the list of the state is to be made, we find, that if any person on the first day of April, shall have money on hand, or money due, &c. Although an idiot may have money due, yet, he cannot have any on hand, as it is all directly placed in the custody, and under the control of the guardian. If this difficulty might possibly be obviated by a construction of the statute, yet, there are others which appear insure mountable. The person, having such money on hand or due, is required to exhibit, and deliver to the listers the amount thereof, on or before the - first day of May. This an idiot cannot do. The listers are required to notify all persons to exhibit and deliver to them true lists, &c., either by set-? ting up a notification, or in case such notification is not set up, by a personal demand. An idiot is incapable of receiving such notice. The listers are required to lodge with the town clerk, on or before th.c twentieth day of June, a list of *305all the assessments made by them, for the perusal and inspection of the persons assessed. An idiot can neither understandingly peruse nor. inspect such'list. If any person' shall think himself over assessed fpr money on hand, he may apply to the selectmen, and make a disclosure on path, what sum is due to him, which disclosure, made in writing, shall be taken and deemed the true sum in which such person shall be assessed. This important provision of the statute, is wholly a dead letter as to idiots. They knpw not the nature pr obligation of an oath, and cannot disclose, either in writing or otherwise. All these act.s and duties are personal, and cannot be performed, either by attorney or guardian. If it should be said, that the guardian may give in the list, and receive the notices before mentioned, it will be answered, that the law does not require or contemplate it, nor could he take the oath, before referred to. It results frpm this view, that although the plaintiff may be embraced by the letter of the statute, requiring all persons to exhibit their, lists, &c., yet, it must be held that she was not intended, as she is void of reason and understanding. Several instances might be mentioned, where the terms made use of in a statute are equally general and comprehensive, and yet cannot be. considered as intending to embrace persons in the situation of the plaintiff. Any person, upon whom a subpoena is served, must appear and testify, or be subject to a penalty; yet this cannot intend an idiot, incapable of receiving a subpoena. Several cases of a similar kind, are enumerated by Plowden, 264.

The statute in question, being inapplicable to the plaintiff, in all its provisions, both in the assessment and collection of the tax, it follows that she was wrongfully assessed, and must recover in this action. It is not a question before us, whether the assessment could be made against the guardian, or whether it is casus omissus. In the case of Payson v. Tufts and others, 13 Mass. 493, it was holden that the property of minors was liable to be assessed in the public taxes, and that it was to be set to the guardian personally. This, however, appears to have been determined, from the words of the tax act, where it was contemplated that property might be assessed to a guardian. It would be obviously more reasonable to assess the property to the guardian *306rather than the infant or idiot, but whether our statute is not equally defective in this particular, it is not for us to say. It is sufficient, that we are satisfied that the ward is not personally liable.

The judgment of the court is, that the plea in bar is insufficient.