Newman v. Waite , 43 Vt. 587 ( 1871 )

The opinion of the court was delivered by

Wheeler, J.

The act of the legislature, upon which the rights of these parties rest, in this case, was passed to make the stock of national banks in this state taxable, and to make the taxation of it feasible. Laws of 1865, No. 6. The taxation of it would increase the revenues of all municipal corporations so situated that they could tax any of it, and all such corporations would be directly interested to have the taxation of it made effectual. A large proportion of the taxes raised in the state is raised by towns, and they would be more largely interested than any other municipal corporation to have the taxation of this stock feasible. The provisions of the act concerning the duties of cashiers of such banks were intended to make the taxation of the stock both feasible and effectual. The act vested the right to have the stock taxed, and to have all things done by cashiers that the act required of them, in the several towns interested. The transmission by cashiers of the lists and names required to the town clerks of towns interested is very necessary to the ready taxation of the stock, and very important to such towns. By the force of the act, cashiers owed to such towns the duty of transmitting such lists and names in the manner prescribed by the act. Upon the facts in this case as they stand admitted by the pleadings, upon which the defendant recovered the judgment now under revision, the defendant owed to the town of Brattleboro the duty of transmitting to the clerk of that town a list, of some stockholders of the bank of which he was cashier, whose stock that town had the right to tax, in the years 1866 and 1867, and he did not perform that duty in either of those years. When the defendant thus omitted to do the duty he owed, he committed a wrong to the town. If any of the stock that was taxable was not taxed in consequence of that wrong, and damage followed, the common law would have furnished a remedy for the injury by an action on the case, if the statute had not provided any remedy. Bac. Ab., Statute K. ; Hatch v. Robinson, 26 Vt., 737 ; Town v. Lamphere, 34 Vt., 365. In such an action the right of recovery would have been for the actual damage consequent upon the injury. But the statute provides for a forfeiture and payment, from any cashier omitting this duty, to any town entitled to the duty, for the benefit of the town, to be recovered by an action on the case. If the statute had stopped, after providing for the forfeiture, without providing where it should go, any town injured by an omission that would work the forfeiture could have recovered it. “ Whensoever a statute giveth a forfeiture or penalty against him who wrongfully detained or dispossessed another of his duty or interest, he that hail the wrong shall have the forfeiture or penalty, and shall have an action therefore upon the statute at the common law.” Co. Litt., 159, a. ; Bac. Ab., Statute K. This act gives this forfeiture to the treasurer of the town, but expressly for the benefit of the town, and in effect is the same as if it gave the forfeiture directly to the town. The legislature, after providing for this forfeiture, expressly gave it to an aggrieved party, that could have recovered it without the giving of it, and provided that it should be recovered in the same form of action, for the benefit of the same party, as the actual damages would have been, if the forfeiture had not been given, without providing that both damages and forfeiture might be recovered. The party had not any right to either actual damages or forfeiture without the statute, and the giving of one without the other is to some extent an implied exclusion of the other. Plow., 113, 206. In criminal cases, where a statute creates an offense and provides a penalty for it, the penalty only can be inflicted. 1 Kent, 167. The implied exclusion seems to be the same in this case as in that. The actual damages consequent upon the omission to make returns might, and in many cases probably would, be difficult to ascertain, and the legislature may have determined that it would be better to fix the damages in cases of omission at a certain sum than to leave them open to be shown by proof. These considerations lead to the conclusion that the legislature gave this forfeiture to towns because they would be most injured by the wrongful omission that would work it, and that it was given as a fixed compensation for the- injury done by the wrong.

The defense set forth in the pleadings now under consideration is that the causes of action did not accrue at any time within two years next before the commencement of this suit. This defense rests upon the provisions of section 5 of chapter 62 of the General Statutes, of the limitation of criminal prosecutions and actions on penal statutes. That section applies to penalties only. This action is for a remedy given to a party aggrieved, and although the remedy is by way of a forfeiture, and is given to the treasurer of a town, it is not barred by the provisions of that section. Whether such an action as this must be brought within .the time limited by section 6 of the same chapter, or not, it is not necessary now to determine. '

Judgment reversed and cause remanded.