Noyes v. Hale , 1884 Mass. LEXIS 249 ( 1884 )

C. Allen, J.

1. If a person who is liable to be taxed in a town for personal property does not bring in a list of such property to the assessors, as provided by law, it is their duty to ascertain, as nearly as possible, the particulars thereof, and to “ make an estimate thereof at its just value, according to their best information and belief.” Gen. Sts. c. 11, § 27. Pub. Sts. c. 11, § 41. If they are unable to ascertain the particular kinds or items of such taxable personal property, an estimate of it may be made as “personal property,” without any enumeration of particulars. This practice, we believe, prevails widely; and indeed it appears to be necessary, in view of the manner in which much taxable personal property is now commonly held, of the ease and frequency with which it is transferred, and of the practical impossibility of ascertaining correctly the particulars of an individual’s investments and property without as well as within the State on any given day. Such appears to have been the method which was sanctioned in Bates v. Boston, 5 Cush. 93, and a similar method in respect to real estate was approved in Tobey v. Wareham, 2 Allen, 594. The requirement of the Pub. Sts. c. 11, § 43, that the assessors shall specify the amount of each of several classes of taxable personal property, namely, money at interest and other debts due, money on hand including deposits, public stocks, and securities, and stocks in corporations without the State, did not exist until 1879. It was adopted chiefly for statistical purposes; it of course extends only to so much of the enumerated classes as the assessors may be able to ascertain; it does not include all taxable kinds of personal property; and a compliance with it is not essential to the validity of a tax. See Sprague v. Bailey, 19 Pick. 436, 441; Lincoln v. Worcester, 8 Cush. 55, 63. The existence of that requirement by no means precludes assessors from assessing a tax upon “personal property,” when they are unable to ascertain the items of which such personal property is composed.

2. It was determined in Harwood v. North Brookfield, 130 Mass. 561, that an additional assessment upon personal property, laid under the authority of the St. of 1868, c. 320, upon a discovery by the assessors that the taxable personal estate of any person has been omitted from the last annual assessment, is not to be considered as a new and independent assessment, but simply as the correction of a mistake in the regular taxation; that the tax of a tax-payer for the year is but a single tax, and a single assessment; that it is not necessary that property of the tax-payer must in fact be found, as a condition precedent to making the addition to the tax, nor even that he should own the newly assessed property; that his position is just the same as if the whole assessment had been made at the outset, and his only remedy, if there is an overvaluation, or if property is included which he does not own or possess, is by application for an abatement, according to the ordinary rule. This decision goes far towards determining the principal point in the present case.

The deceased was liable to be taxed on personal property, and in the regular assessment it was valued at $14,250, apparently without any mention of items, he having brought in no list to the assessors; and the additional tax was merely the correction of a supposed mistake. If the assessors discovered that he was liable to taxation for a greater amount than their original estimate, they were at liberty to assess him for it in the same manner as if it had been included in the original assessment. Their authority to make an estimate of his taxable property at its just value was not exhausted by having made one such estimate, and by including it in the list sent to the collector. The whole tax, that originally assessed, and that assessed by way of addition, was but “ a single tax, and a single assessment,” as declared in Harwood v. North Brookfield; and it was no more necessary to ascertain or to specify the particular items of property, in laying the additional assessment, than in laying the original one. It is urged upon us, that this construction of the statute will leave the citizen open to injustice and oppression; and that, while the amount for which assessors can in the first instance doom him is in a measure limited by statute, there is no limit to the amount at which they can value his estate, by way of an additional assessment. The answer is, that the protection of the citizen lies, first, in the fact that the assessors are public officers, acting under oath, and under the responsibility for misconduct in office which the common law imposes on all public officers; secondly, in his right to give in a list of his property, which is conclusive upon assessors; and thirdly, in his right to an abatement, if the taxes are excessive. The right to an abatement, under the limitation prescribed by § 73, extends to additional assessments laid under § 78. No doubt an extreme case might be imagined, where the discovery of a large fortune owned by a tax-payer, living in a small place, who had been supposed to be comparatively poor, might subject him to the payment of an onerous tax, and might possibly result in the collection of more money by taxation than the needs of the town would require; but this result would equally follow, if all the particular items of his property were ascertained and assessed specifically. If this danger is thought to be a practical one, it must be guarded against by legislation.

3. By the true construction of the St. of 1868, e. 320, (Pub. Sts. c. 11, § 78,) the assessors cannot be said to discover that the real or personal estate of a person has been omitted from the last annual assessment, until they become satisfied as a board that there has been such omission. The statute contemplates joint action on their part, and private information obtained by one or more individual assessors may prove unsatisfactory to the board. When reference is made in the statutes to “ the assessors,” the board of assessors is meant, unless there is something to signify the contrary; Pub. Sts. c. 11, § 5, cl. 10, 12; §§ 7, 9, 11, 72, and numerous other sections; c. 27, §§ 66, 67; and when a single assessor is meant, it is so expressed in plain terms. Pub. Sts. c. 11, §§ 16, 29, 30, 93, and other sections. In the' present case, it might well be found that only one of the assessors had obtained any definite ground to act upon, before the tax-list and warrant were committed to the collector, and that the board of assessors was not informed, and did not know, of Mr. Hale’s ownership of the property covered by the additional assessment till afterwards, and that the assessors then proceeded to act upon it as a board.

4. It is further urged by the defendants, that the additional tax was not entered in the collector’s tax-list, but that a separate and incomplete tax-list was made, and a new warrant issued. It is not quite clear from the bill of exceptions whether the new assessments were at once entered upon the tax-list which had been committed to the collector, or whether the entry was then made merely upon the valuation list kept by the assessors. The defendants take the latter view, although their bill of exceptions speaks of the entry as being made in the tax-list, and not in the valuation-book. If the view of the defendants is adopted, still the list of additional assessments committed to the collector on December 27, with a warrant for the collection thereof, was then in law to be deemed a part of the original assessment of taxes for the year, and took effect as of the first of May. This list of taxes, though contained in a separate book, or on a separate paper, might well be considered to be entered on the tax-list of the collector, which often, if not usually, in large places, is contained in several books. It was then the collector’s duty to collect the same “in the manner specified in his warrant.” § 78. There is no express provision of statute that a new warrant shall be issued in such case; and the defendants contend that an issue of a new warrant is without authority. But, without now determining whether or not such new warrant is necessary, it is clearly within the implied powers of the assessors. According to the usual forms in this Commonwealth, the original warrant specifies the aggregate amount of taxes contained in the tax-list which accompanies it; and by its terms would not cover the additional assessments. Whenever additional assessments are made, either on account of the discovery of additional property, as provided in a. 11, § 78, or upon the application of men or women to be assessed under the provisions of the Pub. Sts. c. 6, §§ 8, 9, it is proper, if not necessary, that a new warrant should be issued containing apt references to the taxes which are thus added to and made a part of the tax-list. So also in case of re-assessments under c. 11, § 79 ; c. 12, § 61.

5. The assessment, being made as of May first, was properly laid to Mr. Hale, who was then living, and not to his executors.

6. The statement made by the assessor Chase to his associates, at a meeting of the board of assessors, was admissible for the purpose of showing that the board then became satisfied that personal estate of Mr. Hale had been omitted from the assessment ; and it was quite immaterial whether his statement of his previous conversation with Wood was wholly correct or not.

Exceptions overruled.