Preston v. King , 61 Vt. 606 ( 1889 )

The opinion of the court was delivery by

Power's, J.

This was an action of assumpsit by the collector ■of the Northfield Graded School District to recover taxes assessed against the defendant’s intestate, White.

The practical question involved was whether White’s taxable domicile was in the Graded School District or in School District No. 13, and the parties succeeded in splitting the jury on that •question. It is now urged that • the action of the listers in setting White to the Graded School District was conclusive, and that his taxes must be paid there, and if he has any remedy it must be sought in some other proceeding.

The statute provides that personal property of intestates shall ■be assessed for taxes in the town and school district where such person last resided.

But the action of the listers in setting a person’s list in a particular school district cannot upon sound principles be held conclusive. In Gregory v. Bugbee, 42 Vt. 480, it was held that the action of the listers in making up a list against a person as resident in the town was not conclusive upon him, and that notwithstanding such action, he might show that he was not legally •taxable in such town. That case is decisive of this. The same reasoning would give the defendant the right to show that he was not taxable in the Graded School District.

The plaintiff in seeking to recover a tax of the defendant ■fakes the burden of the legality of the tax, and this involves among •other things a taxable residence in the district claiming such tax. The court, therefore, the facts being in dispute, must secure a verdict from the jury.

The pro forma judgment of the County Court is reversed, and the case remanded for a new trial.