Humphrey v. Kingman , 46 Mass. 162 ( 1842 )

Hubbard, J.

The two principal questions presented for consideration, under the instructions of the presiding judge in the court of common pleas, are, 1st. whether the tax, alleged to have been paid by the plaintiff, was paid under such circumstances as to entitle him to vote at the election in November 1840; and 2d. if it was so paid by the plaintiff, whether his conduct at the meeting was such as to mislead the defendants, and to exonerate them from all liability to damages in this action.

The right of voting and the burden of taxation are so con nected, that with a few specified exceptions, the one may be said to be dependent on the other ; and to entitle a man to vote, he must, as a prerequisite, have paid, within two years next preceding the time of the election at which he claims a right to vote, a state or county tax, by himself or his parent, master or guardian; by which last provision, minors who have been assessed for a poll tax, or whose property has been assessed for a state or county tax, and which tax has been paid, become immediately qualified to vote on their arriving at full age.

In the case at bar, the judge instructed the jury, “that if the taxes were paid by Mrs. Green for the plaintiff, with or with out previous authority from him, and he recognized the act and repaid, or promised to repay her the amount, on the ground that she had acted as his agent, then the plaintiff stood precisely in the same situation as if he had made the payment to the collector with his own hands ; ” and we think the instruction was correct. The object of the provision is, to obtain the payment of taxes ; and if payment is made in behalf of an individual, and he recognizes the obligation or liability to pay, it is equivalent in law to the payment by himself; as the officers, who collect the taxes, are not called upon to trace the sources from whence the money comes, by which the taxes are paid. The judge also further instructed the jury, if they believed, upon the evidence offered to them, “ that the plaintiff directed the collector.to call upon said Green for payment, because the tax was wrongfully assessed upon the plaintiff, and if Mrs. Green paid the tax, supposing that it belonged to her husband to pay it; and if the plaintiff afterwards, and before the election, not believing that the tax was rightfully assessed upon him, or that Green had any legal claim upon him for the amount, but merely for the purpose of securing a right to vote, repaid the amount to Mrs. Green, and she received it, for the purpose of conferring this right, it was not such a payment of the tax as entitled him to vote.” And we are equally satisfied with the correctness of this instruction. For if the plaintiff did not own the land upon which the tax was assessed, but it belonged to his brother in law, Green and his wife, in his absence, paid the tax for her husband ; then the tax was not paid by the plaintiff, but by him to whom it rightfully belonged to pay it. The tax itself was not paid twice, and the subsequent act of the plaintiff, in giving the same amount of money to Mrs. Green, and taking from her the collector’s receipt of the payment of the tax, which on the face of the receipt was assessed to the plaintiff, was not a payment of a state or county tax either legally or illegally assessed upon him. It was the taking advantage of the mistake of the assessors in a neighboring town, as to the ownership of non-resident property, and by means thereof to represent himself as rightfully entitled to vote, under the pretence of having paid a tax within two years.

It is not the mere payment of money, that qualifies a man to become a voter, but the money paid must be for the discharge of a tax actually assessed upon him, whether legally or illegally. This is not the case of one man’s paying the tax of another to enable the other to vote ; for this was not the tax of the plaintiff — if the jury believed the evidence—for he had disavowed it, and through his communication the true owner had paid it; and he cannot make himself a legal voter, by giving money to the person who paid the tax, and to whom it belonged to pay, for the sake of getting the collector’s receipt and thus enabling himself to furnish to the selectmen apparent evidence of having paid the tax himself.- Bridge v. Lincoln, 14 Mass. 373.

The second important question arising in this case is, that the presiding judge further instructed the jury, “ that if the plaintiff had a legal right to vote at the said election, and the defendants, not acting wilfully or maliciously, but through mistake, had rejected his vote, and if they were led into that mistake by the plaintiff, he was not entitled to a remedy against them ; that they should consider the evidence bearing upon this part of the case, and if they were satisfied that the plaintiff had, at the town meeting, pursued such a course of conduct as would be likely to mislead the defendants into the belief that he abandoned his claim to a right to vote, and if in fact the defendants were misled, their verdict should be for the defendants.”

The principle involved in this instruction is one of importance, both as it regards the rights of voters and the protection which the law affords to officers in the discharge of their duty, who are made personally responsible for the manner in which they perform it. And the case of Lincoln v. Hapgood, 11 Mass. 350, is relied upon by the plaintiff in his argument, to show that the instruction was erroneous. But we think the case at bar is clearly distinguishable in principle from that. There no misrepresentation was made by the plaintiff, nor was there proof of any act or conduct of his, at the time of the election, which could mislead the selectmen, and thus expose them to error ; but it was a mistaken judgment upon a knowledge of all the facts fully laid before them. But in the case at bar, the plaintiff, after his right to vote was challenged, (the selectmen having previously added his name to the list of voters,) on being inquired of, if he had paid the said taxes, replied that he did pay them, and on being asked if he would make oath to that fact, replied that he would. Yet when Green declared that he or his wife had paid them, the plaintiff made no statement or explanation to the defendants of the circumstances attending said payment, but immediately withdrew, without further urging his rights. In consequence of this, the defendants directed the town clerk to strike his name from the voting list. Upon this evidence, the presiding judge charged as before mentioned. Here, the conduct of the plaintiff misled the selectmen into the belief that he had abandoned his claim to a right to vote, and consequently that he had not paid the tax. And we are of opinion that the instructions were correct; because the error of judgment, if any, for which the defendants are now sought to be charged in damages, arose from the plaintiff’s own conduct, and did not proceed from their mistaken view of his rights. And he shall not now be permitted to visit upon them the consequences of his own misjudgment. It is the sound application of the maxim that a man shall not take advantage of his own wrong; that he shall not lie by, when the time is passing it: which it is his duty to present his claims, and forbear to urge them, and afterwards attempt to enforce his rights, to the injury of others. When the selectmen were inquiring into the facts. to enable them to make a correct decision, the plaintiff, instead of persevering in his claim and removing the objection raised, or showing that it was unfounded, abandoned his claim and so led them into error ; and he shall not now be permitted to set up that right, though it really existed, to the damage of these defendants, who were acting honestly in the discharge of their duty.

It was also objected, that the judge admitted testimony on the point whether the land, on which the tax was assessed, had been improved by the plaintiff or not. But we think, for the purpose for which it was admitted, as having a bearing upon the question whether Mrs. Green, in paying the tax, acted as agent for, her brother or not, and whether she ever did call on him to repay it, it was not improperly received.

It was also contended, that the selectmen had no right to strike the name of the party from the voting list, although they were satisfied that he was not a legal voter. In regard to this objection, if the plaintiff was not a legal voter, it was the duty of the selectmen to strike his name from the list of voters ; and whether done at the meeting, or afterwards, was immaterial. The gravamen of the action is, not that the plaintiff’s name was stricken from the list of voters, but that his vote was refused.

On the examination of the case, we are satisfied there were no errors in the rulings and instructions of the presiding judge, to which our attention has been called, and therefore the exceptions are overruled. Judgment on the verdict