Perkins v. Langmaid , 36 N.H. 501 ( 1858 )

Sawyer, J.

"When a case is transferred to this court upon an agreed statement of facts, and the agreement contains no provision for a discharge of the case, or for further proceedings in the court below, the order from this court for judgment is ordinarily to be considered as absolute, and no proceedings are to be had in that court other than to render .judgment according to the order, unless leave is granted, in the order, to one of the parties to move in the court below for further proceedings. If, however, the agreed case contains a provision to the effect that, upon judgment being ordered upon the facts, as agreed, either party may have the right to controvert any of them by a trial before the jury, the order for judgment is to be considered as made subject to the condition for which the parties have stipulated. The order is absolute for judgment upon the statement of facts submitted ; but if, by the terms of the submission, either party is at liberty to show a different state of facts, the order is inoperative, provided either of the parties avails himself of the provision by moving for a trial for that purpose. Regularly, the trial can be had only by discharging the agreed case. It is consequently in order for the party who is dissatisfied with the judgment ordered, to move in the court below for the discharge, that the order may thereby become vacated, and he permitted to try the facts by the jury, in pursuance of the agreement. In this case it was expressly agreed that the case should be discharged and the cause stand for trial, if either party desired it. The case was, therefore, properly discharged by the court below, and when discharged the cause stood upon the docket of that court for trial, and for such other proceedings preliminary to a trial as might be proper in such a case, regardless of the order of this court for judgment.

The case having been properly discharged, it was competent for the court, upon motion of either party, to allow any amendment of the records of the town, consistent with established principles, regulating such amendments ; and the further questions presented are, whether the amendment moved is in its nature such that it can be admitted as an amendment, and, if so, whether it is warranted by the facts. Both these questions are referred to this court by the provisions of the case. It is not to be understood from the case that we are to consider the amendment as made ; that the records of the town have, in fact, been amended under the order of the court below allowing it. By the exception taken to the order, and the transfer of the question arising upon it to this court, the order is suspended until the grounds upon which it was made have been here revised and its propriety determined. The ruling of the court below, allowing the amendment and the exception taken to it, are precisely what would have been implied if the questions arising upon the defendants’ motion for leave to amend, and the evidence in support of it, had been transferred to this court without a distinct statement of the ruling and the exception. Claggett v. Simes, 31 N. H. (11 Foster) 60. If the motion, upon either of the grounds of objection taken by the plaintiff, is to be considered as one addressed to the discretion of the court below, the case is not one in which this court is now asked to revise the proceedings of that court in a matter entirely within their discretion, and in which that discretion has been exercised, but one where a pro forma ruling has been made, for the purpose of referring the question of discretion directly to this court. Such pro forma ruling is required by the provisions of the statute authorizing the transfer, and would be necessarily implied in the transfer, if it had not been expressly stated in the case.

We think the amendment is inadmissible upon either ground of objection.

By the provisions of sec. 6, chap. 43, Rev. Stat., selectmen are required to make a fair record of every invoice taken by them, and of all taxes assessed, which record shall be the property of the town. The making of this record of the assessment of a tax, constitutes the assessment. The invoice may be taken, the mathematical computations made, and a tabular statement prepared, showing the amount of the tax to be assessed against each tax-payer, and thus all the preliminary proceedings completed for assessing the tax, and still the assessment be left incomplete, because the record, which is the essence of the assessment, has not been made as a record of it. There is still wanting the proper authentication of the proceedings as an assessment of the tax, by a record of it as such, purporting on its face, and avouched by the certificate of the proper officers upon it, to be such assessment. The preliminary proceedings in taking the invoice, computing upon that the exact amount of each man’s tax, and preparing a table, showing the name of each tax-payer, the description of his property assessed, and the amount of tax against it, are all proper and necessary to be done, in order to make the assessment. Without them the assessors would not have the means to make it; but they are not the assessment, nor, properly considered, any part of the assessment. That consists in the act of making the record required by the statute, by which the attestation of the assessors, as the proper officers to make it, in the form of a certificate under their hands that it is the assessment, declares and establishes it as the assessment; thus making the assessment by the act of making the record of it. The making of the invoice required by the same section of the statute, constitutes, in like manner, the taking of the invoice, there being no invoice made until the record is made. Of the same character is the proceeding in laying out a highway by the selectmen ; the laying out consisting in the return of it, made by them to the town-clerk, as the record evidence of it.

The record in this case is of an assessment by a joint board, composed of the selectmen of the two towns, purporting on its face to be the proceeding of the joint board, and attested bj them as an assessment made by their joint action. The assessment consists in the making of that record as the proceeding of the joint board. As such it was held illegal; 84 N. H. 815; for the reason that the action of assessors is to some extent judicial; and as the statute requires the assessment to be made by the separate action of the respective boards for their own towns, a majority of the selectmen of Chichester may have been overruled by their associates in the joint board. It is now proposed to change that record, so that it shall stand as the record of an assessment by the selectmen of Chichester alone. This is all that is necessary to make a new assessment, to be substituted for the old. In effect it is to correct the former erroneous proceeding of the defendants, which vitiated the assessment by a new proceeding had — the making of a new assessment. It is clear that this is inconsistent with the statutory provisions which regulate the subsequent proceedings in the collection of the tax; such as leaving a copy of the record of the assessment with the town-clerk, which is to be open to the inspection of all persons ; the issuing of the warrant to the collector, with a list of the taxes assessed, and delivering to the Deputy Secretary of State a certified copy of the list of taxes, as assessed, when it contains an assessment of the property of a non-resident; Laws of 1844, chap. 148, sec. 2; all which must contain not only a statement of the amount of tax and the name of the person, or description of the property taxed, but also, by necessary implication, of the proper officers by whom the assessment was made. It is also inconsistent with that sound policy which requires that selectmen be held to a strict adherence to law in the discharge of their duties as assessors, at the peril of personal responsibility. Wadsworth v. Henniker, 35 N. H. 189. To permit amendments for the purpose of correcting their illegal proceedings would afford opportunity to relieve themselves from the consequences of the illegality, and cast them upon the tax-payer, who, like the plaintiff, may have resisted the payment of the tax because it was thus illegal. If, however, the question be tested by the principles applicable to amendments of the record as evidence of the proceeding — that is, as evidence of the assessment and not as the proceeding itself — the amendment is inadmissible upon the facts in the case. Where the record to he amended consists of a recital of proceedings had, like the returns of officers, or the records of towns or other corporations, showing what have been the official or corporate doings, amendments are admissible, to make the record correspond with the fact. Considering this record as a recital of facts and proceedings, the alleged erroneous fact recited to be corrected by the amendment is that the assessment was made by the joint action of the two boards. It is claimed by the defendants that this is shown to be erroneous, because the selectmen of Chichester, upon the evidence produced, in appraising the property in their town to be assessed, in taking the invoice, and in making the computations for the assessment, acted independently of the selectmen of Loudon, and that there was no joint action of the two boards except in making the record, and upon this ground it is claimed that the assessment in fact was made by the selectmen of Chichester alone. Assuming that these facts are proved as claimed, they show merely that the assessment might have been made an assessment by the selectmen of Chichester, if they had so treated it. The proceedings proved are but preliminary to the assessment, and are consistent with an assessment either way. The fact still appears that they elected to consider it and to make it the assessment of the joint board, because they assented to it as such, and so declared by the record made of it. It must be understood that this was done because they supposed it was required by law to be made in that mode. An amendment which should make the record declare that it was an assessment made by any one, two or five members of the joint board, would be no more contradictory to the fact, than now to make it the assessment of the three who were selectmen of Chichester, because it might have been considered and treated, in making up the record, as the assessment of any one, two or five of the number, if they had so elected, and it may now be regarded as the assessment of either number, upon precisely the same grounds as of the three. The fact is not to be questioned, that when all the preliminary steps to the assessment had been completed, and nothing remained to be done but to give it validity and efficacy as an assessment which should subject the tax-payer to his liability, the selectmen of Chichester elected to make it the assessment of the joint board, and not their separate assessment. It was so- understood and intended, and the intention was carried out by making the record in accordance with the fact. To amend as proposed would make the record contradict the fact. The motion to amend should have been denied in the court below.