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SUPREME COURT OF NEW HAMPSHIRE.

BOODY v. WATSON.

December, 1886.

The public right of enforcing a tax payer's obligation to contribute his share of public expense is created by a legislative division of the common burden in execution of the social contract, and not by a judicial assessment.

An ordinary tax assessment of a town is a judicial act of the selectmen, and they are not liable, in an action for damages, to a person injured by their exemption of taxable property in pursuance of an illegal vote of the town.

The exemption is an erroneous judgment of a court of assessment, and is reversible by the common-law power of general superintendence for correcting errors of courts of inferior jurisdiction where the laws have not expressly provided a remedy.

This power is affirmed by General Laws, chapter 208, section 1; and the invention and use of judicial process and procedure necessary for its exercise are required by the common law and the statute.

The judicial ascertainment of a statutory share of public expense, and process for its collection, may be necessary for the exercise of the corrective power. Correctional authority to reverse a tax exemption that can be reversed only by a tax assessment is authority to make the assessment or cause it to be made.

The statutory authorization of certain writs," and all other writs and processes," is a confirmation of the common-law power of issuing process that is necessary" for the furtherance of justice, and the due administration of the laws." The question of form of action is not considered when time spent upon it would be wasted on a matter of no practical importance.

A petition or motion to bring an action forward, and reverse or modify a judg ment rendered at the trial term of the supreme court, is an ample, simple and convenient remedy; and for that reason a writ of error does not lie in such a case. For a similar reason, a judgment of a lower court that is reversible here on a common-law writ may be reversed here on a petition.

The record of the lower court need not be brought up by a writ of error or certiorari for the correction of error by the common-law power of superintend ence, but may be proved and found, with the other facts of the case, at the trial

term.

A statement of the error as the ground of complaint and cause of action is required in the petition by the essential rules of common-law pleading, for the ascertainment of the precise point in controversy, and the production of distinct issues of law and fact; and on a sufficient petition, the question is whether there is an error, correctible by the superintending power, and not whether it is correctible on writ of error, writ of false judgment, certiorari, mandamus audita querela or prohibition.

A suit for an exercise of the superintending power can be brought by petition in a case for which no remedy is expressly provided by law, and for which no formal writ has been invented.

The power of an inferior court of tax assessors to correct their erroneous judg ment of exemption is not a common-law or statutory test of the correctional power of the supreme court.

An action for a reversal of the judgment, brought at the earliest possible term, is seasonably commenced.

In such an action, seasonably brought, the plaintiff is entitled to ample remedy after, as well as before, the expiration of the tax year during which the error could be voluntarily corrected by the lower court under General Laws, chapter 57, section 10.

A continuance of the case by the supreme court for advisement is an act of the law that works no wrong.

The erroneous judgment, when reversed, is not left in force; it cannot be effectually reversed without an enforceable assessment of the wrongfully exempted property; and the law authorizing a correction of the error puts in requisition the means of correcting it.

One who can obtain a reversal of the judgment in a direct proceeding cannot impeach the original assessment collaterally on account of the error.

In the correction of judicial errors, the common law preserves as far as possi ble what is right, and destroys only what is wrong. This rule is applicable to

errors in the assessment of taxes.

In a legal process addressed to the board of selectmen and their successors in their official capacity as a continuous court of assessment, they need not be personally named.

Petition, against the selectmen of Northwood, for an order upon them to assess a tax, for a writ of mandamus, and for general relief. Reported, 63 N. H. 320. After the case was decided at the June term, 1885, the question was raised whether the writ could be issued after the expiration of the tax year during which the selectmen were authorized to make a reassessment by the act of 1878- Gen. Laws, chap. 57, § 10-which provides: "If the selectmen, before the expiration of the year for which a tax has been assessed, shall discover that the same has been taxed to a person not by law liable, they may, upon abatement of such tax and upon notice to the person liable for such tax, impose the same upon the person so liable. And also if it shall be found that any person or property shall have escaped taxation, the selectmen, upon notice to the person, shall impose a tax upon the person or property so liable."

Marston & Eastman, for plaintiffs. Bingham & Mitchell, for defendants.

DoE, Ch. J. By express statute, the shoe factory of the Pillsbury Brothers, located in Northwood, was taxable in that town in 1884. Gen. Laws, chaps. 53, 54. Under section 10 of chapter 53 it had been exempted, by a vote of the town, for the term of ten years; and that term had expired. July 31, 1885, it was decided in this case that the exemption law did not authorize the second vote of the town continuing the exemption for another term of ten years; that the second vote was void and no defense to this suit; that the omission of the factory in the assessment of 1884, in pursuance of the illegal vote, was error, and a violation of the public right of taxation; and that the plaintiffs were entitled to judgment for a correction of the error. Boody v. Watson, 63 N. H. 320. They were entitled to relief in this suit when it was brought in 1884, and until April 1, 1885. The merits of the case having been decided in their favor, the only remaining question is one of remedy. The defense now is not a denial of the adjudicated violation of the plaintiffs' legal and equitable right, nor a defect of remedy when the suit was brought, nor a mistake in the alterable form of action, nor any delay in bringing or prosecuting the suit, nor any fault or laches of the plaintiffs at any time, but an alleged failure of remedy happening ten months after the suit was brought, while the court were forming the opinion that the plaintiffs were entitled to a reversal of the exemption. The question whether their adjudicated right can now be vindicated by a judgment for the correction of the defendants' adjudicated error, or whether the remedy expired on the last day of March, 1885, brings into consideration the origin and nature of the right, and the distinction between the right and its remedy.

"All government of right originates from the people, is founded in

consent

When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others... All power residing originally in, and being derived from the people, all the magistrates and officers of government are their substitutes and agents. Every member of the community has a right to be protected by it in the enjoyment of his life, liberty and property. He is, therefore, bound to contribute his share in the expense of such protection." Bill of Rights, arts. 1, 3, 8, 12. "The people inhabiting the territory formerly called The Province of New Hampshire do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign and independent body politic, or state, by the name of The State of New Hampshire. The supreme legislative power within this State shall be vested in the senate and house of representatives." Const., arts. 1, 2. In the exercise of authority given by the social contract thus made as the origin and organic law of the State-State v. U. S. & C. Express Co., 60 N. H. 219, 253-the legislative agents of the community, determining by a general rule the shares of public expense which the owners of this factory and the owners of other property are bound to contribute, have decided what the law shall be. Other public agents decide what the tax law is, and what the facts are in a particular case, apply the law to the facts, and state the result in a tax assessment.

In determining what property was taxable and what was exempt the defendants acted judicially; and they are not liable, in an action for damages, for errors in their decision. Hayes v. Hanson, 12 N. H. 284, 289; Perkins v. Langmaid, 34 id. 315, 326; Edes v. Boardman, 58 id. 580, 584, 585, 596; Salisbury v. County, 59 id. 359, 362; Barnardiston v. Soame, 6 St. Tr. 1063, 1096, 1097, 1119; Colman v. Anderson, 10 Mass. 105, 118, 119; Weaver v. Devendorf, 3 Den. 117; Williams v. Weaver, 75 N. Y. 30, 33; s. c., 100 U. S. 547, 548; Strusburgh v. Mayor, 87 N. Y. 452, 455; 15 Am. L. Rev. 502; Cooley Taxation (2d ed.), 786-795. In Barhyte v. Shepherd, 35 N. Y. 238, 250, 251, an action against assessors for assessing the plaintiff and refusing to exempt him, the court say: "The plaintiff is a resident of the town of Spencer, having in his occupancy a farm of one hundred and forty-seven acres and owning personal property. The assessors are not bound to know that there is any reason why this property should not be assessed with the other property of their town; or if there may be a right of exemption, they have no means of knowing that the plaintiff would desire to claim the benefit of it. He is, therefore, in the first instance, properly chargeable on the assessmentroll with the property owned by him. He may, and in the present case he did, appear before the assessors and claim an exemption or a reduction on two grounds. First, he claimed an abatement from his personal property on the ground that he owed debts equal to its value, which, by another provision of the law, entitled him to such deduction. This fact he was bound to establish by oath, and subject to a crossexamination by the assessors, who, after hearing his evidence and deliberating upon it, would decide the question and allow or disallow his claim, as the truth should require. He also claimed a deduction on the

ground that he was a minister of the gospel, and gave his own evidence on this point, and was cross-examined by the assessors. They disallowed his claim, holding, as I conclude, upon the evidence he gave them, that the calling of a minister must be exclusive, and that his occupation as a farmer during the week days prevented him from claiming the benefit of the deduction allowed to a minister. In each and all of the cases I have suggested under this statute the action of the assessor is eminently judicial in its nature. To administer oaths, to hear evidence, to weigh its effect, to compare it with the law and to decide the question presented are of the essence of judicial action. To make the figures indicating a deduction and to make the deduction itself, on the assessment-roll, may be conceded to be a ministerial act: but to arrive at the conclusion, by hearing and weighing evidence. judging of its credibility and comparing the evidence with the provisions of law, that the plaintiff was entitled to a deduction, is as far from a ministerial act as can well be imagined. The defendants had jurisdiction of the subject-matter of the proceeding and of the person of the party interested."

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The defendants' immunity "does not depend at all on the grade of the office, but exclusively upon the nature of the duty." Cooley Torts, 381. "It is not necessary that a magistrate or board should act formally as a court, or that they should be usually so denominated or considered. If they are bound to notify and hear parties and can only decide after weighing and considering such evidence and arguments as the parties choose to lay before them, their action is judicial." Sanborn v. Fellows, 22 N. H. 473, 488, 489. "The selectmen or assessors shall, on the first Monday of April in each year, give public notice of the times and places where they will be in session for the purpose of hearing all parties in regard to their liability to taxation." Gen. Laws, chap. 55, § 6. In Kansas it has been held that an ascertainment of the value of property is an incident of the legislative power of taxation; that the legislature may assess a tax upon an appraisal made by themselves; that an appraisal made by a certain board of assessors could be annulled by legislative action; that the legislature cannot open a judicial decision and give a new trial; the assessors' appraisal was not such a decision; that the power of determining the value of property for the purpose of taxation, being legislative, cannot be judicial. Auditor v. Railroad, 6 Kans. 500. The valuation made by these defendants was judicial administration of a general statute of taxation; and being judicial, it was not legislative. Cooley Taxation, 409, 410. "Where a tax is levied on property not specifically, but according to its value, to be ascertained by assessors appointed for that purpose, upon such evidence as they may obtain officers, in estimating the value, act judicially.' Hagar v. R. District, 111 U. S. 701, 710. "The abatement of a tax by selectmen is a judicial act." Melvin v. Weare, 56 N. H. 436, 439. With some possible exceptions, not affecting this case, questions of abatement are questions of assessment. Judicially determined in this court on abatement appeals they are judicially determined by the decisions appealed from.

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Though not entitled to jury trial- the case being one in which it was otherwise used and practiced" before the adoption of the Constitution Cocheco Co. v. Strafford, 51 N. H. 455, 458-persons assessed have a constitutional right to be heard, in some stage of the proceedings, on the judicial questions of liability. Cooley Taxation (2d ed.), 47-53, 361-366; Edes v. Boardman, 58 N. H. 580, 585. In some cases the inconveniences resulting from assessors holding an exercise of the legislative power of taxation to be void are evidence of a legislative intention that the execution of tax laws and tax votes should not be suspended by assessors. Edes v. Boardman, 58 N. H. 580, 595; School District v. Carr, 63 id. 201. But such an intention does not alter the nature of a question of tax liability correctly or incorrectly decided by the court of assessment.

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The validity of the town's vote exempting this factory for a term of ten years was a judicial question, depending on the legal construction of section 10 of chapter 53, and the defendant's construction was erroneous. The unauthorized vote did not empower them to release the factory from the share of public expense allotted to it by the legis lature. Notwithstanding their unauthorized and voidable exemption of it, and their transfer of its statutory share to the plaintiffs and other tax payers, its liability remained undischarged, as the liability of the owners of all the farms in the town would have remained if the assessment had exempted them, and put upon the factory the share assigned by statute to the farms. The whole sum to be paid by the owners of taxable property, and the share to be paid by each, were fixed by legis lative action- State and municipal which the assessors could not annul. Many liabilities, created by statute or the common law. are ascertained on judicial inquiry, declared in judgments, and enforced by executions. A tax payer's liability to contribute his share of the common burden, judicially ascertained by a court of special and limited jurisdiction, declared in a judgment called an assessment, and enforced by an execution called a warrant, is not created by the assessment. The Pillsburys' non-payment of their statutory share would be a compulsory payment of that share by their neighbors, and, in effect, a payment to the Pillsburys for their private use of their neighbors' money. The Pillsburys' payment of their own share was the plaintiffs' statutory and constitutional right. State v. U. S. & C. Express Co., 60 N. H. 219, 251, 252. For the defendants' violation of this right, there is no remedy in an action for damages. And available remedies, in an action at law for damages on a bill in equity and by indictment, would not have been a bar against the plaintiffs' petition for a mandamus. High Extr. Remedies, SS 17, 18, 20, 36.

The plaintiffs' primary and substantive right is based, not on the defendants' duty of judicial assessment, or on their or our correctional duty, but on the legislative assignment to the factory of its share of a common expense incurred in the execution of the social contract. Before an action can be maintained by Northwood for the recovery of the share of the public expense due from the Pillsburys as owners of the factory, the legislature have required the share and the payers of it to be judicially ascertained and recorded, either by the selectmen, or

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