Cahoon v. Coe , 52 N.H. 518 ( 1872 )

^* Doe, J.

I. The warrant of the state treasurer empowered the sheriff to collect $3 tax, the proportion of Wentworth’s Location, under the act of 1847 raising $80,000 to be assessed, collected, and paid into the treasury on or before December 1, 1848. In the advertisement the tax was described as the State tax “ for the year A. D. 1848.” The. law did not expressly describe the tax as of any particular year, and there is. no absolute rule requiring it to be called by the name of the year, of the act of the legislature authorizing it, or by the name of the year in which it is expected to be paid. Ordinarily it would seem to be safe to name a tax as of the year in which it is understood to be payable, although it might pot be a misnomer to name it of the year when it is voted. The law has not expressly fixed the nomenclature on* this point, and we see no reason for establishing an arbitrary rule by construction. What is wanted is a description practically sufficient for the information of the taxpayer and all parties interested in the tax. Describing it as of the year when it is due, seems not likely to mislead any one, and to be unobjectionable.

II. The statute required the advertisement to contain the amount of tax which is inserted in the collector’s list. The amount inserted in his list was $3 tax, and $1 for the warrant. In the advertisement the tax was stated to be 300, the warrant 100, and the total 400, without any special mark, punctuation, separation, or sign, to show that the figures were intended.to represent money, or one kind or denomination of anything rather than another. Such a statement of the amount of tax in the advertisement, if it is defective, cannot be eked out by a presumption that the taxpayer knows that a tax described as a State tax for the year 1848 is part of $60,000 voted by the legislature in 1847, and that, of every $1,000, the proportion of Wentworth’s Location is a certain sum fixed by the general law. Most people would naturally suppose that the cost of the warrant was more likely to be $1 than $100 ; but it is doubtful if the taxpayer should be compelled to supplement the information which the advertisement should give him of the amount of tax, by a supposition of that kind. He must be presumed to understand that, in the connection in which the figures occur, they mean money, and the ordinary currency of the country; but whether they must be understood to mean one denomination or another of that currency, or whether they indicate no denomination at all, and are therefore uncertain and insufficient, is not so clear.

There are cases in which, in the absence of evidence as to the amount or value of property, it is fair to find, by a presumption of fact, that the property is of the largest quantity or best quality, as against a party who conceals the property, or, having means of proving its amount or value, withholds the evidence, or is in. fault for not having made it certain, and obtained and retained evidence of it when it was in his power to do so. Bailey v. Shaw, 24 N. H. 297, 301; Ladd v. Harvey, 27 N. H. 372, 381. But such cases present no rule of law; they are merely cases where the tribunal, trying a question of fact, finds a fact by a natural inference or presumption from the absence of evidence which a certain party ought under the circumstances to produce. Possibly there may be cases of contract in which” a written agreement by construction, or a parol agreement by presumed intent of the parties, may be held to mean the lowest number, or smallest quantity, or poorest quality, rather than defeat the entire contract for uncertainty. But the question in this case is not of the weight of that evidence which consists of the significant absence of evidence which a party could have produced, nor of the construction or intent of a contract, nor of good pleading. It is a question of the sufficiency of the information given in a notice required by statute. Did the notice give the information of the amount of tax required by the statute? Are 800, 100, and 400, when read with the context, the same as $8, $1, and $4? What would the taxpayer understand the amounts to be if.he saw the notice ? It has been held in Illinois and California that the statement of a tax, in figures alone, with no special indicia of denomination, is fatally defective. Lawrence v. Fast, 20 Ill. 338; Lane v. Bommelmann, 21 Ill. 147; Eppinger v. Kirby, 23 Ill. 523; Dukes v. Rowley, 24 Ill. 210; Cook v. Norton, 43 Ill. 391; Woods v. Freeman, 1 Wall. 398; People v. S. F. Savings Union, 31 Cal. 132; Braby v. Seaman, 30 Cal. 610, 619. In Lawrence v. Fast, Breese, J., delivered a dissenting opinion in which we concur. We are satisfied that the figures, taken in the connection in which they stand, must be understood to mean dollars or cents, or dollars and cents, the ordinary denominations of our money; and we incline to the opinion (though by no means free from doubt) that, there being nothing to indicate dollars, the figures may be understood to signify cents, the lowest denomination of our currency in common use. Upon this construction, the advertisement is sufficient.

III. The objection that the sale was made after the return day of the warrant, cannot prevail. Homer v. Cilley, 14 N. H. 85, 99; Wells v. Burbank, 17 N. H. 393; Smith v. Messer, 17 N. H. 420.

IV. The statute requires the advertisement of sale to be posted up at some public place in the town where the lands lie. Rev. Stats., eh. 46, sec. 7. No advertisement was posted in the location. The jury have found that, applying all the tests of a public place given them in the instructions, there was no public place in the -location. If the whole question, What constitutes a public place for the purpose of notice? were a new one, there might be good reason to give it a more careful examination than it has yet received in this State, and to consider whether the true construction of the statute is not that notice should be posted in the town, inhabited or uninhabited, travelled or untravelled; whether the notice should not be posted in one of the most public places, in a place as public as any, or in a place where it would be as likely to be seen as in any ; whether the word “ public,” used to describe a place of notice, is arbiti*ary and technical, or whether it requires that notice should not be posted at a place in the town where it would be materially less likely to be seen by such persons as might happen to be in or to go into the town, than at some other place in the same town ; whether the statute does not imperatively require notice to be posted in the town, and whether the chief object of the word “ public ” was not to prevent an intentional or negligent concealment of the notice, by posting it at a place not public as compared with other places in the town; whether the word means anything more than a place relatively and comparatively public, and, at all events, not essentially and peculiarly less public than other places in the same town, if there is no place of common resort. Very strong reasons might be given for such a construction. But the general question is not an open one (Wells v. Company, 47 N. H. 235, 255); and the manner in which the settled construction was applied at the trial of this case the defendant cannot complain of. If the construction given to the statute from 1825 (Tidd v. Smith, 3 N. H. 178) to the present time is erroneous, the introduction of the true construction, and the retrospective application of it, might now unsettle titles and disturb vested rights that have grown out of the established construction. In some cases, where people, acting on the faith of what has been declared to be the law, have been induced to change their position, retrospective decision is as distinctly prohibited by the common law (carrying out the doctrine of natural justice called equitable estoppel) as retrospective legislation is by the constitution, which, in this respect as in many others, is but a reenactment of a very ancient principle. In such cases, when a change is necessary, it should be made applicable to future cases by the legislature.

V. Chapter 47 of the Revised Statutes does not require the number of acres of an unincorporated place, taxed by the state treasurer, to be stated in the warrant by him committed to the sheriff for the collection of the tax.

VI. The sheriff could not invalidate his sale by subsequently neglecting to leave his papers with the clerk of court. Authorities cited in Wells v. Company, 47 N. H. 235, 258.

VII. The mistake in the sheriff’s deed, referring to the tax as payable on or before January 1, 1850, when by the act it was payable on or before December 1, 1848, is immaterial. The description of the land and the sheriff’s authority are sufficiently plain. The mistake leaves no doubt of what he undertook to convey, or by what authority.

VIII. The warrant of the State treasurer was under seal, as required by law (Rev. Stats., ch. 47, sec. 3); but the copy of it sent by the sheriff to the deputy secretary (Rev. Stats., ch. 47, sec. 4; ch. 46, sec. 2) had no seal, nor any mark or sign of one. The original had no month in its date ; the copy had “April” in its date. Was the paper, purporting to be a copy, a sufficient copy within the. meaning of the statute, notwithstanding these variances V The “ treasurer shall assess the tax ” and “commit such tax to the sheriff,” “ with a warrant under his hand and seal to collect the same,” and the “ sheriff shall proceed in the same manner” as collectors of taxes of non-residents “ are by law bound to do.” Rev. Stats., ch. 47, secs. 1, 3, 4. Selectmen are required to make “a list of the taxes” of non-residents, “ under their hands;” “such list shall be delivered to the collector,” “and the collector shall” “deliver a certified copy of his list to the deputy secretary; ” and “ the deputy secretary shall keep such copy at Concord” “ for the inspection of all concerned, and shall receive the tax.” The object of the statute, in requiring the deputy secretary to have a copy “ for the inspection of all concerned,” and to receive the tax, is, to give non-residents an opportunity to pay their taxes at Concord (which may be a more convenient place than the town in which the land lies), and to give them some information when they undertake to make payment there. What information did the legislature intend they should obtain from the copy ? We see no design to provide any other for them than such information concerning the tract of land taxed and the amount of the tax, that they may know what land is taxed, and what the tax is. The copy of the list of non-resident taxes is required to convey no information except that such taxes of certain amounts have been assessed on certain lands (with the name of the owner or original owner, if known), authenticated by the certificate or attestation of the collector as being copied from the original list made by the selectmen “ under their hands,” but not necessarily under seal. There is nothing in the statute indicating that the subsequent sale of land for nonpayment of tax is to be void, by reason of any clerical mistake in the copy not affecting the information which the taxpayer is entitled to find in it. If the original is dated April 20, and the copy represents it as dated April 21, we see no reason to suppose the legislature intended the sale should be void, any more than for the misspelling of words where the sense is clear. And if the name of the month is omitted in the date of the original, and April inserted in the copy, the object of giving the taxpayer information of the identity of the land taxed and the amount of the tax being accomplished, the statute, construed by its manifest general purpose (the office of construction being to ascertain the intent of the legislature), does not invalidate the sale for such an immaterial variance.

The statute requires, not that the sheriff shall deliver a copy of his sealed warrant to the deputy secretary, but that he shall proceed in the same,manner as a collector of non-resident taxes is by law bound to do; and such collector is by law bound to deliver to the deputy secretary a certified copy of the list of non-resident taxes, made by the selectmen “ under their hands,” and delivered to him. When a proper list of taxes assessed upon an unincorporated place is inserted in the treasurer’s warrant, the warrant is a sufficient list. Wells v. Company, 47 N. H. 235, 256. But the statute does not require that the copy of the list of taxes delivered to the deputy secretary by the sheriff shall contain a copy of the seal of the warrant authorizing him to collect the taxes, or a copy of anything except what a list of non-resident taxes is required to contain. It is a copy of the list of taxes, — a copy of a paper containing what a list of taxes is required to contain, — that is to be delivered to the deputy secretary for the inspection and information of all concerned ; and when the list is contained in a warrant, a copy of the warrant, so far as it is a list, is a copy of the list, within the evident object and meaning of the statute. So far as the warrant is more than a list, — so far as it contains more than a list (of taxes assessed upon an unincorporated place) need contain, — the statute does not require a copy of it to be delivered to the deputy secretary. The intention of the legislature was to give the taxpayer an opportunity to obtain information of those things which the list should contain, to enable him to ascertain what land was taxed, and what the tax was. If he sees in the copy any evidence of a defect in the original not affecting the points as to which he is entitled to find information in the copy, but touching the assessment or proceedings on other points, and is thereby put upon inquiry to ascertain whether the defect exists, he has all the advantage which it can be presumed the legislature intended he should have. If he might rely upon the copy as conclusive evidence of defects in the original not affecting such information, the collection of such taxes would be burdened with unreasonable formalities, and titles of real estate destroyed by defects of which the purchaser could not be expected to be aware. Judgment on the verdict.

* Bellows, C J., did not sit.