Boody v. Watson , 64 N.H. 162 ( 1886 )

The question for consideration arises upon the objection of the defendants, made after the judgment reported in63 N.H. 320 was pronounced, that the writ cannot issue against them because the tax year 1884 and their term of office have expired, and they consequently have no power to make the assessment.

Argument has taken a wide range. Many questions have been discussed, a decision of which, in the present state of the pleadings, is not necessary. The questions whether the defendants' successors in office, or any persons other than the defendants, can be required to make the assessment, whether the court can itself assess the tax or adjudge in general terms that it shall be assessed, and various other questions incidentally presented and argued, do not properly arise. Without as well as with the prayer for "such other relief as may be just," the plaintiffs may have any relief against the defendants to which they are found entitled. It is the duty of the court to render such judgment between the parties as upon the whole record appeals to be proper, but no judgment can be rendered for or against persons who are not parties. If it has been held in other jurisdictions that final judicial process may issue against persons not parties to the proceeding and who have had no notice and no opportunity to be heard, such is not the law of this state. Brown v. Sceggell, 22 N.H. 548, 552; Horn v. Thompson, 31 N.H. 574; Bruce v. Cloutman, 45 N.H. 37, 38; Wilbur v. Abbot,60 N.H. 40; Holbrook v. Bowman, 62 N.H. 313; Eastman v. Dearborn,63 N.H. 364; Pennoyer v. Neff, 95 U.S. 714, 732; Secretary v. McGarrahan, 9 Wall. 298; United States v. Boutwell, 17 Wall. 604, 608. Neither the defendants' successors in office nor the Pillsburys are parties. They have had no notice of the proceeding. They have had no hearing and no opportunity to be heard. They are not concluded or affected by the facts found. Ball v. Danforth, 63 N.H. 420. A judgment against the selectmen now in office, requiring them to assess the tax, or against the Pillsburys, that a tax be assessed by the court or by any one under its direction, would be a judgment rendered without jurisdiction.

The plaintiffs can have no relief against the defendants except the writ of mandamus specifically prayed for. If they are not entitled to that remedy, their petition (in default of an amendment bringing in other parties) must be dismissed. The defendants, being selectmen of Northwood for the year 1884, neglected to assess on the property of Pillsbury Brothers a tax which the law required them to assess. Their term of office, as well as the tax year 1884, has long since expired. The sole question before the court is, whether it can lawfully order them to do now that which they ought to have done while in office. It is not material whether a Latin, English, or other name be given to a judicial order of this character. To its lawful issue under any name, or in any form, two essential requisites must concur, namely, (1) a right in the plaintiff to have the thing in question done, and (2) power in the party against whom the order is sought to do it. If either is wanting, the application must be denied. Here both are wanting. The defendants have no power to assess the tax, and the plaintiffs have no right to its assessment.

By the constitution (Bill of Rights, Arts. 12, 28; Part II, Arts. 5, 6), and the uniform practice under it for more than a hundred years, no property can be taxed except such as is declared taxable by the legislature. Property not expressly subjected by statute to taxation is exempt. Opinion of the Justices, 4 N.H. 570; Brewster v. Hough,10 N.H. 143; Savings Bank v. Nashua, 46 N.H. 392, 395, 396. Much property always has been and still is untaxed. Acts of February 7, 1789; February 8, 1791; February 22, 1794; December 26, 1798; December 24, 1803; December 16, 1812; July 3, 1830; January 4, 1833; Rev. St., c. 39; Gen. St., c. 49, G. L., c. 53.

Selectmen are public officers whose powers and duties are prescribed by statute. They have no authority to assess taxes or to do any official act except such as is conferred upon them by the legislature. Although they exercise some functions of a judicial nature (Edes v. Boardman,58 N.H. 580), they are not within the meaning of the constitution (Bill of Rights, Arts. 33, 35, 37; Part II, Arts. 4, 46, 73-82), or of G. L., c. 208, s. 1, judges, judicial officers, or a court.

They are required to take annually, in April, an invoice of all the polls and estate liable to he taxed in their town on the first day of that month, and upon it to assess all taxes for the year following; to make a fair record of the invoice and of the taxes assessed, and before July 1 to leave it, or a copy of it, with the town-clerk to be recorded, and kept "open to the inspection of all persons." G. L., c. 55, s. 1; c. 57, ss. 1, 3, 6. Until the act of August 17, 1878 (G. L., c. 57, s. 10), they had no authority to modify or amend the record after its delivery to the clerk. When their invoice and assessment were completed and recorded, their taxing power was exhausted. Bristol Co. v. Gridley, 27 Conn. 227; Clark v. Norton,49 N.Y. 243; People v. Delaney, 49 N.Y. 655; Overing v. Foote,65 N. Y. 263. Errors not curable by abatement under Gen. Laws, c. 57, ss. 11, 12, were irremediable. Assessed taxes might for good cause be abated, but no other or additional tax could be assessed. It happened not unfrequently that in taking the invoice taxable property was overlooked, or set down to a person not liable to be taxed for it. All such property, however speedily after the completion of the record the mistake was discovered, escaped taxation. To remedy in some degree this mischief, the statute of 1878 (G. L., c. 57, s. 10) was enacted. It is not a restrictive, but an enabling and remedial act. It confers upon the selectmen a power which they did not possess. Harwood v. North Brookfield, 130 Mass. 561, 564, 565; Noyes v. Hale, 137 Mass. 266,271. By it they are authorized to correct at any time, before the expiration of the tax year, and not afterward, two classes of errors, viz., omissions to tax taxable property, and the taxation of it to persons not liable. Other mistakes quite as serious and quite as likely to happen they cannot correct. An error of undervaluation, for example, may effect as great inequality of taxation as an omission to assess, but though discovered immediately after the record is delivered to the clerk, it is irremediable except by a proportional abatement of all other taxes, which would be in most cases impracticable, and in many impossible. The legislature might, if it thought proper, authorize a correction of all errors, and at any time as well after as before the expiration of the tax year. It has not seen fit to do so. For reasons satisfactory to the legislative judgment it has restricted the exercise of the corrective power to the errors mentioned and to the tax year. It may have considered that a revision by the selectmen of the doings of their predecessors would produce greater mischief than the occasional escape of taxable property from taxation. Whether the legislature has acted wisely or unwisely is not material. Under the law as it stands, the selectmen of Northwood holding the office in the tax year beginning April 1, 1884, and ending March 31, 1885, and they only, were authorized to correct, within the year and not afterward, the error of omitting to tax the Pillsbury property by assessing upon it a tax for that year. This proposition is not denied. The plaintiffs concede that the defendants cannot now of their own motion assess the tax, but insist that they may nevertheless be authorized and compelled to assess it by the court. In this view it is immaterial that they were in 1884 selectmen of Northwood. If the court can confer the power, it may give it as well to any other persons as to them, and this petition might have been as properly brought against the county commissioners, the sheriff, or any private citizens of Northwood or of the state, as against the defendants.

It is the province of courts to vindicate legal rights and redress legal wrongs; to administer not abstract justice, or justice as they may think it to be, but justice as declared by law. Freeman v. Tranah, 12 C. B. 413, 414. They may ascertain rights under the established law, award compensation for their violation, and in some cases restrain the commission of threatened wrong and compel the performance of legal duty. Beyond this they have no power to go. To create obligations, to impose duties and to confer powers, are functions, not of the law-administering but of the law making branch of the government. "Judicial power as contra-distinguished from the power of the laws has no existence. Courts are the mere instruments of the law, and can will nothing." Osborn v. U.S. Bank, 9 Wheat. 866. In proper cases they may issue their mandate to a public officer requiring him to perform his official duty. But by it no new duty is imposed or power conferred. By virtue of it the officer is charged with no obligation not previously incumbent upon him, and can take no action which he could not take without it. "No court," says Strong, J., in United States v. County of Clark,95 U.S. 773, "will by mandamus compel . . . officers of a state to do what they are not authorized to do by the laws of the state. A mandamus does not confer power upon those to whom it is directed. It only enforces the exercise of power already existing where its exercise is a duty." "The court never grants a mandamus except it indisputably sees that there is a power lodged in the person to whom the mandamus is prayed." The King v. Bishop of Ely, 1 W. Bl. 58. "It is used merely to compel action, and coerce the performance of a preexisting duty. In no case does it have the effect of creating any new authority or of conferring power which did not previously exist, its proper function being to set in motion and to compel action with reference to previously existing and clearly defined duties. It is therefore in no sense a creative remedy, and is only used to compel persons to act where it is their plain duty to act without its agency." High. Ex. Rem., s. 7, and ss. 9, 10, 14, 24, 25, 32, 36, 37, 39, 80-99. No case has been cited and none has been found in which it has been held that a writ of mandamus or other precept may be lawfully directed to a person not by law authorized and bound to execute it. In Supervisors v. Rogers, 7 Wall. 175, a mandamus to assess a tax was directed to the marshal, under a statute authorizing it to be so directed. Barkley v. Levee Commissioners,93 U.S. 264, 265. In the last named case (93 U.S. 258) a mandamus was denied, for the sole reason that the defendants were not authorized by law to execute the command.

The court cannot lawfully issue an order to any person not bound by law, independent of the order, to obey it. Power to command implies the duty of obedience. The fact that no person is bound by law to obey a particular command is conclusive evidence that the court cannot lawfully make it. The sheriff is obliged to execute a precept of the court, not by force of the court's command, but because it is by the statute (Gen. Laws, c. 216 s. 3) made his duty. If it has ever been held that an order of the court in any form or under any name can be legally made, except to enforce the performance of an obligation by law incumbent upon the party to whom it is directed, the case has not been cited. If the court of king's bench possessed the power to compel individuals to do that which they were not required by law to do, or which they had no lawful power to do, no instance of its exercise has been called to our attention. The unquestioned authority of that court to keep all inferior tribunals within their jurisdiction, and to correct their errors of law, does not include the power to create such tribunals, to confer upon them authority, or to do the work which the law declares shall be done exclusively by them.

The legislature has imposed duties of a judicial nature upon a great number of public officers and official bodies, and has given them, in many cases, final and exclusive jurisdiction of the matters entrusted to their determination. So it is, for example, in the case of supervisors regulating the check-list (G. L., c. 30); the school-committee dismissing a teacher (G. L., c. 89, s. 7) or a scholar (G. L., c. 91, s. 3); county commissioners locating a school-house (G. L., c. 88, ss. 6, 7); selectmen dismissing a prudential committee (G. L., c. 87, s. 15), or ordering mill-owners to repair or build (G. L., c. 141, ss. 2, 4, 7, 8); fence-viewers (G. L., c. 142); health officers, acting under Gen. Laws, c. 111, s. 3, c. 112, ss. 2, 7, c. 113, ss. 2, 3, 5, 7; courts-martial, under Gen. Laws, c. 104, ss. 8, 13, 25, 26; railroad commissioners, in fixing tables of maximum charges under Laws of 1883, c. 101, s. 4; and of a justice of the peace, removing an incumbrance from the highway, under Gen. Laws, c. 76, s. 5. In these and other similar cases the supreme court has no authority under the statute (G. L., c. 208, s. 1), or at common law, except to keep the tribunals within their jurisdiction, and see that their proceedings are regular. It may quash their doings for want of jurisdiction or for irregularity, but cannot revise their decisions upon the merits, or do what they ought to have done. It cannot remove incumbrances from the highway, dismiss teachers, locate school-houses, divide fences, etc., etc., for the plain reason that it has no jurisdiction of the subject-matter. Regina v. Bolton, 1 Q. B. 66, 72; Rex v. Monmouthshire, 8 B. C. 137; Rex v. Glamorganshire, 1 Ld. Ray. 580; Owen v. Hurd, 2 T. R. 643; 1 Tidd's Pr. (3d Am. ed.) 398; Railway Co. v. Lythgoe, 10 C. B. 726; Beswick v. Boffey, 9 Exch. 315; Fraser v. Fothergill, 14 C. B. 298; Railway Co. v. Grace, 2 C. B. N. S. 555; Carr v. Stringer, E. B. E. 123; Clifton v. Furley, 7 H. N. 783; Freeman v. New Haven, 34 Conn. 406, 415; Com. v. Westborough,3 Mass. 406; Com. v. Roxbury, 8 Mass. 457; Com. v. Ellis, 11 Mass. 466, 467; Farmington Co. v. Com'rs, 112 Mass. 206, 213; Kempton v. Saunders,132 Mass. 466, 468; Petition of Landaff, 34 N.H. 163, 173, 176, 178; Hayward v. Bath, 35 N.H. 525, 526; Railroad v. Folsom, 46 N.H. 64,66; Richardson v. Smith, 59 N.H. 517, 519.

The fact that this action was begun during the tax year of 1884, while the defendants were in office and had power to assess the tax and while the plaintiffs were entitled to have it assessed, is immaterial. In civil suits the rights of the parties are generally determined as of the time when the action was commenced, because that is the question presented by the pleadings. The cases however are numerous in which a cause of action, good in the beginning, is lost while the suit is pending. If at any time before final judgment matter arises showing that the plaintiff is not entitled to the relief he seeks, and it is properly brought to the attention of the court, his action fails; as if, for example, he becomes an alien enemy, is outlawed, or suing as administrator his letters are revoked, or if the defendant obtains his discharge in bankruptcy. In these instances, and many others of like character, judgment goes against the plaintiff, although he set out with a good cause of action. Some matters of defence accruing after the commencement of the suit must be pleaded; others, as in this case, consist of facts judicially noticed, which need never be pleaded. In all legal proceedings courts are bound ex officio to give such judgment as appears upon the whole record to be proper without regard to the issues found or to the prayer for judgment. Kittredge v. Emerson, 15 N.H. 227, 239; Rochester v. Whitehouse, 15 N.H. 468, 474; Le Bret v. Papillon, 4 East 502; Broom Leg. Max. 138.

The general principles of pleading prevail in petitions for mandamus, so far as the nature of the proceeding admits of their application. High Ex. Rem., ss. 448, 451, and cases cited; People v. Baker, 35 Barb. 105, 113 — S.C. 14 Abb. Pr. 19, 32; State v. Elkinton, 1 Vroom 335. Mandamus cannot issue to an officer if pending the suit he has resigned his office (Secretary v. McGarrahan, 9 Wall. 298, United States v. Boutwell, 17 Wall. 604, State v. Elkinton, supra, State v. Guthrie, 17 Neb. 113, Mason v. School-District, 20 Vt. 487), if his authority to act has been taken away by a repeal of the law (Miller's Case, 1 W. Bl. 451, more fully reported under the name of Rex v. Justices, c., of London, 3 Burr. 1456, Springfield v. Hampden, 6 Pick. 501) or has expired by limitation of law (Williams v. Com'rs, 35 Me. 345, McGuire v. Waterman, 5 Nev. 323), if it will expire before the act sought to be enforced can be performed (The King v. Com'rs, 2 Ld. Ray. 1479, Woodbury v. Com'rs, 40 Me. 304), if the act has in the meanwhile been done (State v. Schofield, 41 Mo. 38), or to restore to office one who before final judgment has become disqualified to hold it. Webber v. Zimmerman, 23 Md. 46. And generally the petition must be dismissed if, at any time before the writ is granted, it appears that the plaintiff is not entitled to it. People v. Batchellor, 53 N.Y. 128.

Judgment nunc pro tunc cannot be rendered; the nature of the proceeding forbids it. The only judgment which can be rendered for the plaintiffs is, that the writ issue commanding the defendants personally to assess the tax. Judgments requiring for their execution the personal action of a defendant stand on widely different grounds in this respect from those to the effective operation of which no such action is necessary, and which may be performed by his administrator, or satisfied out of his estate. Judgments of the latter character may, in proper cases, be rendered after a party's death, as of a term of the court when he was living. Blaisdell v. Harris, 52 N.H. 191; Freeman v. Tranah, 12 C. B. 406. Obviously in mandamus such a judgment cannot be effectively rendered against a dead defendant. With no more reason can it be lawfully rendered against a defendant to compel official action after the expiration of his official life. Springfield v. Hampden, 6 Pick. 501, was an application for mandamus to the commissioners of highways. While it was pending, the act creating the office was repealed. In reply to a suggestion that the writ might be awarded nunc pro tunc, Parker, C. J., says, "the cases in which this discretionary power has been exercised were wholly dissimilar to this, and we do not feel authorized to extend the principle further than it has heretofore been applied. . . . We should by so doing give power and jurisdiction by a fiction to a tribunal which has by the act of the legislature ceased to exist, and this would be legislative power, which we are not authorized to assume." If the board of censors, in Gage v. Censors, 63 N.H. 92, had pending the litigation come to an end by limitation, or by a repeal of the statute creating it, the court could not, without a usurpation of legislative power, have prolonged its existence, or have required the persons formerly composing it to give the plaintiff a trial and adjudge whether he was or was not entitled to a license. The way in which an officer's authority is terminated, whether by expiration of his term of office, by repeal of the statute creating it, by other act of the law, by his resignation, removal, or death, cannot be material. In no one of these instances is the power of official action more effectively gone than in another. The court is no more incapable of restoring it by the law of nature in the one case than it is in the others by the law of the land.

The plaintiffs have no right to have the assessment made. It is not the plaintiffs' constitutional right to equal taxation, but their statutory right to the assessment of the particular tax on the Pillsbury factory, which is in question. The plaintiffs assert under the statutes a specific right, which in the absence of the statutes confessedly does not exist. The inequality of taxation, if any, produced by them is immaterial except upon the question of their construction, if that is doubtful. It is also immaterial, for reasons already stated, that the right existed during the tax year of 1884. The question is upon its existence now. The Pillsburys have rights. Any view of the case which leaves them out of consideration is inadequate and deceptive. The plaintiffs' right, and the Pillsburys' liability to the assessment, are coextensive and correlative: the former cannot exist without the latter. If there is no provision of the statute requiring the assessment to be made, it is the Pillsburys' right that it shall not be made.

One "great end for which men entered into society was to secure their property." By the common law "that right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside are various. Distresses, executions, forfeitures, taxes, c., are all of this description, wherein every man by common consent gives up that right for the sake of Justice and the general good. By the laws of England every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license but he is liable to an action though the damage be nothing. . . . If he admits the fact, he is bound to show, by way of justification, that some positive law has empowered or excused him." Lord Camden, in Entick v. Carrington, 19 How. St. Tr. 1066. Every charge upon the subject must be imposed by clear and unambiguous language. Dwar. Stat. 646; Calladay v. Pilkington, 12 Mod. 513; Davison v. Gill, 1 East 64; Rex v. Croke, Cowp. 26; Lofft 438, 439. "The rule of law," says Wilde, C. J., in Gosling v. Veley, 12 Q. B. 407, "that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax rate or toll, except upon clear and distinct legal authority established by those who seek to impose the burden, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it." "The law of England is most careful to protect the subject from the imposition of any tax except it be founded upon and supported by clear and distinct lawful authority." Gosling v. Veley, 4 H. L. Cas. 726, 726, 727, 781. If the government seeking to recover the tax cannot bring the subject within the letter of the law, the subject is free however clearly within the spirit of the law the case may appear to be. Partington v. Att'y-General, L. R. 4 H. L. 122. The doctrine that a person's property cannot be taken to satisfy either his debts to individuals or his obligations to the public, or for any other purpose, except in conformity with the provisions of law authorizing it to be taken, has never, it is believed, been departed from by the courts of any jurisdiction where the common law prevails. The cases are numerous in which levies of executions upon the property of a debtor have been held invalid by reason of a non-compliance with particular provisions of the statutes. Mead v. Harvey, 2 N.H. 495, 497; Libbey v. Copp, 3 N.H. 45; Simpson v. Coe,3 N.H. 85, 87, 89; Woodward v. Gates, 4 N.H. 548; Rix v. Johnson,5 N.H. 520; Cogswell v. Mason, 9 N.H. 48, 50; Whittier v. Varney,10 N.H. 291, 295, 296; Rangeley v. Goodwin, 18 N.H. 217; Avery v. Bowman,39 N.H. 393; Welch v. Ossipee Bank, 58 N.H. 147; Saunders v. Bank,61 N.H. 31.

By Gen. Laws, cc. 237 and 238, all real estate except the homestead right is declared liable for the payment of the owner's debts. But if a debtor's land happens to be so situated that a levy of an execution cannot be made upon it in the mode pointed out by the statute, his creditor cannot take it. Russell v. Dyer, 40 N.H. 173. "No doctrine," says Bell, C. J. (pp. 183, 184), "has received more universal assent than that in disposing of a debtor's lands by compulsory proceedings under a statute for the payment of his debts, the course prescribed is to be strictly followed. A failure to comply with any of the substantial requirements of the statute renders the proceedings void, and leaves his title to the land unaffected . . . If proceedings of this essential character cannot be had in conformity to the statute in reference to land situated in unincorporated or uninhabited places, . . . the authority under the statute to sell a debtor's right of redemption does not extend to lands so situated." Upon a motion for a rehearing, this doctrine was affirmed. Russell v. Dyer, 43 N.H. 396. The court there say (p. 401), that while it was the avowed object of the statute to make all of a debtor's property, except specific exemptions, liable for the payment of his debts, "the creditor who would make it available for his benefit must in every instance show an exact compliance with the provisions of the statute, as to the mode of the set-off. No discretion was left to the creditor, or officer, or to the court, as to the way in which the debtor's lands were to be subjected to the payment of his debts. The statute provisions must be explicitly followed. . . . Where a statute makes any part of a man's property liable for the payment of his debts, it also provides a way in which it may be taken and sold, and unless all the provisions of the statute are followed, the benefits to be derived from the statute cannot be gained; and if a statute of this kind fails to provide a way in which any right or property may be sold, then there is no provision for its sale at all." In Lebanon v. Griffin, 45 N.H. 563, the court say, — "We regard the decision in Russell v. Dyer as settling the question that where a party relies upon the provisions of a statute on which alone his claim or right depends, he must show a compliance with the terms and conditions of the statute. It is not enough that he shows he did all that was in his power to comply with them."

The cases in which the doctrine has been applied to the assessment and collection of taxes are much more numerous. A few of those decided in other jurisdictions are collected in Cooley on Taxation, pp. 209, 257, 258-290, 296, 326, 354, and in Cooley Const. Lim. (4th ed.) 643-649. In all, without, it is believed, an exception, it is held essential to the validity of an assessment that every material requisite of the statutes be complied with. "Taxation for public purposes is a conceded power of government, but it must be enforced strictly according to law or it becomes the most obnoxious means of confiscation." Church, C. J., in Bank v. Elmira,53 N.Y. 59.

The doctrine has always from the earliest period been rigorously maintained by this court. The cases are cited in the margin.^* If in some of them it has been misapplied, their authority for the present purpose is not weakened. Its continued maintenance is of infinitely more importance than that the plaintiffs be reimbursed whatever they may have paid beyond their just share of the public expense in Northwood. Mills v. Manchester, 58 N.H. 39.

In Pike v. Hanson, 9 N.H. 491, it was held that where the statute required the selectmen, before entering upon their duties as assessors, to take and subscribe an oath to make a just and true appraisement of all ratable estate, an assessment made by them without taking the oath was void. The court say, — "This provision of the statute cannot be deemed merely directory. It was designed for the protection and security of the citizen, whose rights are in some degree in the discretion of the assessors. The legislature intended, by the special oath thus required formally to be taken and subscribed by the assessors, to guard as far as possible against all abuse of this discretion; and we cannot dispense with so important a requisition." Selectmen cannot adopt an appraisal made at their request by another, "because the law intends that they should exercise their own judgment." Hayes v. Hanson, 12 N.H. 289. If unauthorized persons unite with them in making the appraisal, their assessment is void. Perkins v. Langmaid, 34 N.H. 316, 326,327 — S. C, 36 N.H. 502, 507, 508. The assessment of a tax larger by the smallest sum than is authorized by the statute is fatal to its validity. Wells v. Burbank, 17 N.H. 394, 412 (see Laws of 1871, c. 9, s. 1, G. L., c. 57, s. 4, Taft v. Barrett, 58 N.H. 450). In Lisbon v. Bath, 21 N.H. 325,326, the court say, — "The power of taxation is one of the highest elements of sovereignty. It cannot be enforced upon the citizen unless by clear and distinct provisions of law. . . . Hence, whenever money is to be raised by taxation the specific purpose for which it is required must not only be inserted in a legal warrant, but must be voted at a legal meeting of the town, and be assessed and collected in a legal way." In Weeks v. Waldron,64 N.H. 149, decided at the last term, it was held that a tax sale of nonresident land is invalid if the number of acres in the taxed parcel is not inserted in the collector's list, as required by Gen. Laws, c. 59, ss. 1, 2. The court say, — "Whether there was any sufficient reason in our opinion for the legislature to make this provision is of no importance. . . . The language of the statute is plain, and the legislative will, as expressed, cannot be disregarded. When the requirements of a constitutional statute are plain and positive, courts are not called upon to give reasons why it was enacted. It is never lawful in the construction of statutes to impute useless or frivolous conduct to the legislature."

In Cahoon v. Coe, 57 N.H. 556, it was held upon great consideration that, if in any case the provisions of the statute relating to the collection of a tax cannot be complied with, the result is not that the statute may be dispensed with, but that the tax cannot be collected. Russell v. Dyer, 40 N.H. 173, and 43 N.H. 396, was cited and approved. Stanley, J., says (p. 570), that the old maxim of the law, that every statute authority to divest the title of one without his consent and transfer it to another must be strictly pursued or the title will not pass, "is founded firmly upon principles of equity and natural justice." Cushing, C. J., says (p. 579), — "It does not appear to me that a tax is a debt of any higher obligation than any other honest debt; and I can see no reason why the requirements of the statute should not be as rigorously fulfilled in appropriating a man's property to the payment of a tax, as in appropriating it to the payment of a debt. There is no principle which I can find, in morals or justice, by which the state is bound to any more rigorous observance of its laws in enforcing the payment of other honest debts than in enforcing the payment of its own claims." After exhaustive argument upon a motion for a rehearing, Stanley, J., says (p. 597), — When the statute requires notice to be given in a particular way before a man's estate can be declared forfeited, unless that notice is given his property is not taken under process warranted by law. It matters not whether the notice which the law requires can be given or not; the law of the land is not complied with unless it is given, and if it cannot be complied with, the property cannot be taken. The maxim lex non cogit ad impossibilia . . . may be applicable to this case; but as suggested by my brother, Cushing, in the matter of the collection of the tax where the provisions of the statutes cannot be complied with."

The right of every citizen that his property shall not be taken by the state under the name of a tax except in pursuance of authorizing statutes is not only affirmed by the common law, but is secured to him by the express terms of the constitution. The bill of rights (Art. 28) declares that "no subsidy, charge, tax, impost, or duty shall be established, fixed, laid, or levied, under any pretext whatsoever, without the consent of the people or their representatives in the legislature, or authority derived from that body." Without the authority of the legislature a tax can no more be levied than it can be laid. The levy of a tax is its assessment and collection. No tax laid upon property according to its value can be levied without a valuation and assessment. A tax is established and laid upon railroads by Gen. Laws c. 62, s. 1, which provides that "Every railroad corporation in this state exempted from taxation shall pay to the state an annual tax upon the actual value of the road." etc., but if the legislature had made no provisions, express or implied, for its assessment and collection, it could not be levied. If under the constitution the duty of assessing taxes can be imposed upon the court, and if, in case a tax were laid with no express provision for its assessments, it could be presumed that the legislature intended that it should be assessed by the court, there is no room for the presumption where the legislature has particularly prescribed by what offices and in what manner it shall be assessed. In fact, the legislature has never laid or authorized a tax for the levy of which it has not made full and explicit provision. The provisions of statutes laying taxes (G. L., c. 62, ss. 1, 14, c. 65, s. 1, Laws of 1885, c. 64), or authorizing them to be laid (G. L., c. 23, ss. 2, 3, c. 38, s. 4), and specifying the property liable to taxation (G. L., c. 53), are no more imperative than those of chapters 54, 55, 56, 57, declaring when, how and by whom they shall be assessed. The whole matter of taxation rests in the control of the legislature, subject to the restraints of the constitution. It is as supreme within its province as the parliament of England. It can impose taxes and require them to be assessed and collected under whatever limitations and conditions it may deem proper. It is competent for it to declare that they shall be assessed by certain officers and by no others, within a time limited and not afterward, in a prescribed manner and not otherwise. Whenever it has proclaimed the legislative will in these particulars, the taking of a man's property under the guise of a tax assessed by any other officers, at any other time or in any other manner, is not taxation but robbery, and none the less so if it be done under the sanction of the court. It is no justification that the money taken is paid into the public treasury and applied to governmental purposes, that no more is taken than his just share of the public expense, and that if not taken his neighbors would be compelled to pay more than their due share of the common burden. All general laws may sometimes work injustice. If they do, it affords the legislature a good reason for amending them, but none to anybody for violating or ignoring them. In a government by law, the administration of abstract justice contrary to law is the most mischievous of all wrongs.

The legislature has declared that the selectmen, being first sworn to the faithful and impartial discharge of their duties (G. L., c. 41, ss. 1, 2), shall, annually in April, take an invoice of all the polls and estate liable to be taxed on the first day of that month (G L., c. 55, s. 1), shall appraise all taxable property at its full and true value in money (G. L., c. 56, s. 1), and Upon the invoice so made assess the taxes for that year. G. L., c. 57, St. 1, 3. Except in cases not here material it has not authorized an assessment of taxes by any other persons, or in any other manner. If the adoption by the selectmen of an appraisal made by others under their direction, or a participation of others with them in making the appraisal, vitiates their assessment, it cannot be any the less void if both it and the appraisal are wholly made by strangers to the office. By the statutes and the constitution the right of every tax-payer that his property shall be subjected to no tax which is not assessed by the selectmen upon an appraisal made by them while in office, and under the sanction of their official oath, is as firmly secured to him as his right that no more than his proportional part of the public expense shall in any case be required of him. If for any reason his property cannot be so appraised, it cannot be taxed. The body charged by law with the power and duty of appraising the Pillsburys' shoe factory, and assessing upon it the tax of 1884, ceased to exist on the 31st day of March, 1885. No tribunal authorized to make the assessment is in existence. If justice requires that it should now be made, the remedy is with the legislature. Heine v. Com'rs, 19 Wall. 661; Barkley v. Levee Com'rs, 93 U.S. 258; Thompson v. Allen County, 115 U.S. 555, 560; Overing v. Foote 65 N.Y. 264.

It is the legal right of Pillsbury Brothers that their property in Northwood be appraised and assessed for the taxes of any year by the selectmen of Northwood Who hold the office during that tax year, and while they hold it. The lapse of time which has rendered such an appraisal and assessment for the tax of 1884 impossible, has not destroyed their right, but their liability, and the plaintiffs' right to the assessment which resulted from that liability. An assessment in 1886 of their tax for 1884 by the defendants, either voluntarily or under the direction of the court, would be as much a violation of their right as would be an assessment by the selectmen of 1886 of double their just proportion of the taxes for that year. It is no answer that by the unlawful assessment they are required to pay only what upon principles of equity they ought to pay, and would have been compelled to pay if the tax of 1884 had been seasonably assessed. Joyner v. School District, 3 Cush. 567, 572; Clark v. Norton, 49 N.Y. 243,248; Cavis v. Robertson, 9 N.H. 524, 531; Grafton Bank v. Kimball,20 N.H. 107, 113.

The tax-payer's right that his neighbors shall contribute their just proportion to defray the public expense is no more sacred than that of a creditor to have his debtor's property applied in satisfaction of the debt. In neither case is the right absolute. It is qualified by the condition that it can be enforced in conformity with the provisions of the statutes. If it cannot be so enforced, the right does not exist.

Metcalf v. Gilmore, 59 N.H. 417, Peaslee v. Dudley, 63 N.H. 220, Walker v. Walker, 63 N.H. 321, and Owen v. Weston, 63 N.H. 599, are not relevant. The questions in those cases related merely to remedy and procedure, and it was comparatively unimportant how they were decided. Here the question is one of right.

These considerations dispose of the question before the court. The petition, no amendment being asked for, should be dismissed on both grounds, (1) because the defendants have no power to assess the tax, and (2) because the plaintiffs have no right to the assessment. They show also that the result would be the same if the petition were amended by making the present selectmen of Northwood, or the Pillsburys, defendants, although as against them no judgment can now be pronounced.

Mandamus is a discretionary writ. It is not awarded in every case where it is the appropriate remedy, and the applicant's right undoubted. High Ex. Rem., s. 9. Here the plaintiffs' pecuniary injury is trifling, — so small that the maxim de minimis non curat lex may well be applied. Mills v. Manchester, 58 N.H. 39. The selectmen's conceded want of power voluntarily to correct assessment errors after the lapse of the tax year has existed for more than one hundred years. The evil, if it be one, is easily curable by the legislature, and is especially fit for its consideration. It cannot be denied that the authority of the court to correct it is at least doubtful. For these reasons, if there were no other, a wise judicial discretion requires that the petition should be dismissed. It is essential to a free government that its executive, legislative, and judicial powers be kept as separate from and independent of each other as the nature of government will admit. Bill of Rights, Art. 37. The judiciary has never hesitated to exert its authority to keep the legislative department within its province. It controls both that and the executive branch so far as to keep them from exceeding their constitutional powers. The court is the final arbiter of all controverted legal questions. Neither the legislature nor the executive can revise its action or reverse its judgments. It is supreme. If it condemns without notice, adjudges without hearing, denies justice, or, what is equivalent, administers that which it is pleased to call justice, in defiance of the legislative will, the people have no remedy except by impeachment and removal, or by revolution. It ought, therefore, while it is vigilant to restrain usurpations of the law-making and law-executing branches of the government, to be especially watchful that it do not itself trespass upon the domain of either. It is wiser to refer the correction of the occasional mischiefs incidental to all general laws to the legislature, which is always at hand, than to assume the exercise of a questionable jurisdiction.

BINGHAM, J., concurred in this opinion.

The following mandate was issued:

The State of New Hampshire. Rockingham, ss. [L. S.] To the selectmen of the town of Northwood, in said county.

Whereas the following judgment has been rendered: —

"The State of New Hampshire. "Rockingham, ss.

"In the supreme court of said state, at the law term held at Concord on the first Tuesday of December, 1886.

"Elbridge G. Boody, Irving Dow, Charles F. Cate, Lewis E. Kimball, Caleb W. Hanson, Charles A. Hill, Charles Wingate, William Knowles, John C. Hill, John R. Dow, Warren P. Swain, N. Rollins, M. P. Knowlton, Joseph S. Trickey, and J. A. Cate, all of Northwood, in said county, plaintiffs,

against

William D. Watson, Enoch Fogg, and James W. Hoyt, all of said Northwood, defendants.

"On a petition, for that said plaintiffs complain against said defendants, and say that the plaintiffs are owners of real and personal estate in said town of Northwood, and are legal voters and tax-payers there; that at the annual meeting holden within and for said town on the second Tuesday of March, 1884, said Watson, Fogg, and Hoyt were duly elected and qualified as selectmen of said town for the year next ensuing; that as such selectmen they were bound by law to take an invoice of all the estate liable to be taxed in said town on the first day of April, 1884, and seasonably thereafter to assess thereon all state, county, town, and other taxes which by law they might be required to assess; that on said first day of April, John J. Pillsbury and Alpha J. Pillsbury, both of said Northwood, and doing business under the name and style of Pillsbury Brothers, were the owners of certain real and personal estate in said Northwood of the value of fifteen thousand dollars, liable to be taxed; that warrants from the treasurers of the state of New Hampshire and the county of Rockingham aforesaid were duly furnished to said selectmen, whereby they were required to assess a tax amounting to a large sum, to wit, the sum of fifteen hundred dollars; that certain taxes were also voted by said town for the year aforesaid, amounting to a large sum, to wit, the sum of two thousand dollars, all of which taxes said selectmen were by law bound to assess upon the aforesaid property of said Pillsbury Brothers: yet the said selectmen, although notified and requested to assess said taxes upon said estate, neglect and refuse so to do. And your petitioners say that they have no other remedy at law than the writ of mandamus. Wherefore they pray that the said Watson, Fogg, and Hoyt, selectmen as aforesaid, may be ordered and commanded by this court to assess the taxes aforesaid upon the estate aforesaid, and that a writ of mandamus may be issued by said Court, directed to them for the purpose aforesaid, and for such other relief as may be just.'

"The foregoing petition of the plaintiffs was filed on the third day of June, 1884, was entered at the law term of said court held at Concord on the first Tuesday of June, 1884, and was then postponed for notice returnable August 28, 1884, at which time all parties appeared; and it was ordered that the facts be found at the trial term of said Court.

[The plea and replication are fully recited.]

"At the next trial term, held on the third Tuesday of October, 1884, the parties agreed that the following are the facts:

"``The Pillsbury Brothers, named in said petition, are residents in the town of Northwood, and shoe manufacturers, and have been engaged in said business since about 1867, and during the whole time have had invested in their business, as shoe manufacturers, a capital exceeding ten thousand dollars.

"``At a legal meeting of said Northwood, holden on the 21st day of June, 1873, the following resolution was passed, in accordance with an article inserted in the warrant therefor, under Gen. Sts., c. 49, s. 9. "Resolved, That we exempt from taxation any shoe manufactory, or any other manufactory that has been or may be established in this town for the term of ten years, provided there shall be invested in such manufacturing business at least ten thousand dollars, and is established prior to January first, 1875."

"``During the period of ten years fixed by said resolution the Pillsbury Brothers' establishment and capital invested therein were not taxed by said town.

"``On Sept. 23, 1882, at a legal meeting of said town, the following vote was passed, in accordance with an article inserted in the warrant therefor, under Gen. Laws, c. 53, s. 10, that "the town will . . . exempt from taxation any shoe manufacturing establishment and the capital used in operating the same for the term of ten years, which has been or may be established in said town, or any other manufacturing establishment that has been or may be established, provided there shall be invested in any such manufacturing business at least ten thousand dollars, and may be established prior to January 1, 1884."

"``It was under this last vote that the exemption of the Pillsbury Brothers' establishment and capital invested therein was claimed April 1, 1884. When the vote of June 21, 1873, and that of Sept. 23, 1882, were passed, there was in said town no shoe manufactory except that of the Pillsbury Brothers, and no other was then contemplated.

"``There being some question as to the sufficiency of said vote of Sept. 23, 1882, the town, at a legally holden meeting, on July 24, 1884, under an article in the warrant therefor, passed the following vote: "Voted to exempt from taxation for the term of ten years the shoe manufacturing establishment of Pillsbury Brothers in this town and the capital used in operating the same; said manufacturing establishment and the capital used in operating the same exceed in value the sum of five thousand dollars." At the time of the passage of the vote of Sept. 23, 1882, the capital invested by the Pillsbury Brothers was much larger than that invested at the time of the passage of the vote of June 21, 1873.

"``Defendants proved that after the passage of the vote of Sept. 23, 1882, and relying upon it, the Pillsbury Brothers reorganized their business, and expended several thousand dollars that they otherwise would not; and that they continued their business in said town, relying upon said vote of 1882.'

"This cause came on to be heard on the foregoing agreed facts, and was argued by counsel, and thereupon all and singular the premises being seen and by the court now here fully understood, and mature deliberation being thereupon had, it appears to this court, and it is accordingly considered and adjudged, that the said votes of the town of Northwood of September 23, 1882, and July 24, 1884, in the record mentioned, so far as they purport or were intended to exempt from taxation the manufacturing establishment and capital, or any property, of the said Pillsbury Brothers, are repugnant to the law of said state, and so not valid, and therefore that the selectmen of said Northwood, as a municipal court of assessment, erred in their judicial judgment and action upon said invalid votes, and in their assessment of taxes for the year 1884, whereby taxable property of said Pillsbury Brothers was, by the said erroneous judgment and action of said court, illegally exempted from taxation; and that the said court ought to have assessed to said Pillsbury Brothers the taxable property illegally exempted as aforesaid: Whereupon, it is considered, ordered, and adjudged by the court now here that the exemption allowed and adjudged by the said court of assessment as aforesaid, and the judgment of said court of assessment so far as it illegally exempts taxable property as aforesaid, be and the same hereby are reversed and annulled; that the error of exemption in said assessment be corrected; that an assessment of a tax be made to said Pillsbury Brothers on their property illegally exempted as aforesaid, at its value on the first day of April, 1884, and at the rate of that year; that the tax thus assessed be collected by suit or otherwise; that the foregoing orders of assessment and collection be carried into execution by the defendants' successors in the office of selectmen of said Northwood, as a municipal court of assessment; and it is by this court now here further ordered and adjudged that a special mandate do go from this court to the selectmen of said Northwood as such, and as a municipal court of assessment, to carry into execution the foregoing orders of assessment and collection; that if any judgment heretofore rendered in this cause is not compatible with this judgment, it be so modified as to conform hereto; that if any mandate, writ, or other process for the execution of any judgment in this case has issued, the same be recalled and canceled; and that execution be issued in favor of the plaintiffs against the defendants for their taxable costs "

Now, therefore, we command you, the selectmen of said Northwood, to carry into execution the foregoing orders of assessment and collection.

Witness, Charles Doe, Esquire, the 26th day of February, 1887. C. G. Conner, Clerk.

^* Harris v. Willard, Smith (N.H.) 63, 66; Brown v. Smith,1 N.H. 36; Johnston v. Wilson, 2 N.H. 202; Manufactory v. Barron, 3 N.H. 36; Brown v. Dinsmoor, 3 N.H. 103; Tidd v. Smith, 3 N.H. 178; Gove v. Lovering3 N.H. 292; Waldron v. Tuttle, 3 N.H. 340; Eastman v. Little, 5 N.H. 290; Cardigan v. Page, 6 N.H. 182; Nelson v. Pierce, 6 N.H. 194; Cambridge v. Chandler, 6 N.H. 271; Brewster v. Hyde, 7 N.H. 206; Cloutman v. Pike,7 N.H. 209; Walker v. Cochran, 8 N.H. 166; Gibson v. Bailey, 9 N.H. 168; Smith v. Burley, 9 N.H. 423; Pike v. Hanson, 9 N.H. 491; Cavis v. Robertson, 9 N.H. 524; Brewster v. Hough, 10 N.H. 138; Pickering v. Pickering, 11 N.H. 141; Hayes v. Hanson, 12 N.H. 284, Blake v. Sturtevant,12 N.H. 567; Bellows v. Parsons, 13 N.H. 256; Henry v. Sargeant,13 N.H. 321; Homer v. Cilley, 14 N.H. 85; Wells v. Burbank, 17 N.H. 393; Smith v. Messer, 17 N.H. 420; Bean v. Thompson, 19 N.H. 290; Grafton Bank v. Kimball, 20 N.H. 107; Lisbon v. Bath, 21 N.H. 319; Ainsworth v. Dean,21 N.H. 400; Osgood v. Blake, 21 N.H. 550; Chase v. Sparhawk, 22 N.H. 134; Osgood v. Clark, 26 N.H. 307; Rice v. Wadsworth, 27 N.H. 104; Gordon v. Clifford, 28 N.H. 402; Gordon v. Rundlett, 28 N.H. 435, Lyford v. Dunn,32 N.H. 86, 87; Perkins v. Langmaid, 34 N.H. 315; Perkins v. Langmaid,36 N.H. 501; Davis v. Handy, 37 N.H. 69; Pierce v. Richardson, 37 N.H. 306; Clark v. Bragdon, 37 N.H. 562; Lamprey v. Batchelder, 40 N.H. 522; Copp v. Whipple, 41 N.H. 273; Rogers v. Bowen, 42 N.H. 102; Lefavour v. Bartlett,42 N.H. 555; Savings Bank v. Nashua, 46 N.H. 389; Railroad v. Prescott,47 N.H. 62; Wells v. Company, 47 N.H. 235; Jaquith v. Putney, 48 N.H. 138; Fletcher v. Drew, 48 N.H. 180; Wells v. Company, 48 N.H. 491; Savings Bank v. Portsmouth, 52 N.H. 17; Cahoon v. Coe, 52 N.H. 518; Pickering v. Coleman, 53 N.H. 424; Bailey v. Ackerman, 54 N.H. 527; Roberts v. Holmes,54 N.H. 560; Bowles v. Clough, 55 N.H. 389; Paul v. Linscott, 56 N.H. 347; Thompson v. Gerrish, 57 N.H. 85; Cahoon v. Coe, 57 N.H. 556; Taft v. Barrett, 58 N.H. 447; Sawyer v. Gleason, 59 N.H. 140; Buttrick v. Iron Co.,59 N.H. 392; Perley v. Stanley, 59 N.H. 587; Weeks v. Gilmanton,60 N.H. 500; Thompson v. Ela, 60 N.H. 562; French v. Spalding, 61 N.H. 395; Mowry v. Blandin, 64 N.H. 3; Burpee v. Russell, 64 N.H. 62; Weeks v. Waldron, 64 N.H. 149.