SECTION 73.-SAME-QUESTIONS OF FACT

HARRINGTON v. GLIDDEN.

(Supreme Judicial Court of Massachusetts, 1901. 179 Mass. 486, 61 N. E. 54, 94 Am. St. Rep. 613.)

Exceptions from superior court, Middlesex county.

Action by one Harrington, as collector of taxes, against one Glidden. From a judgment for plaintiff, defendant brings exceptions. Overruled.

HAMMOND, J.19 In this action the plaintiff, as collector, seeks to recover a tax assessed upon the defendant, as trustee. It is contended by the defendant that, even if he was a trustee, such was the nature and location of the property, and his relation to it, that he was not taxable as such.

The first question is whether this ground of the defense is open to the defendant in this action. The assessment and collection of taxes is regulated by statute. The assessors are public officers, and, while their duties are of a quasi judicial nature, their jurisdiction is limited, based sometimes upon the residence of the person assessed, or of some other person interested in the property, and sometimes upon the situation of the property. Without reciting in detail the statutes, it is sufficient to say that they provide that each person may bring in a sworn list of the personal property for which he in any capacity should be taxed, and this list is to be received by the assessors as true, except as to valuation, unless he, being required thereto by the assessors, refuses to answer on oath all necessary inquiries as to the nature and amount of his property. case a person does not bring in a list, the assessors shall ascertain, as nearly as possible, his taxable property, and "make an estimate thereof at its just value, according to their best information and belief," and "such estimate shall be conclusive," except in certain cases not here material. Pub. St. c. 11, §§ 38-42. Any person aggrieved by an assessment may apply for an abatement to the assessors, and, by appeal from their decision, to the county commissioners or superior court, and on questions of law may reach this court; but no person shall have an abatement unless he files a list, as above provided. Id. §§ 69-72; St. 1890, c. 127.

In

This plain, adequate, and complete remedy for the correction of errors, whether of law or fact, is the only one provided by our statutes; and when the assessors are acting within their jurisdiction, it must be regarded as exclusive, in accordance with the well-known

19 Only a portion of the opinion of Hammond, J., is printed.

rule that "when a new right is created by statute, which at the same time provides a remedy for any infringement of it, that remedy must be pursued." Osborn v. Danvers, 6 Pick. 98, 99.

But when the assessors are acting outside their jurisdiction, their acts are absolutely void. Where, for instance, the tax ordered is illegal because for a purpose not authorized by law, the assessment is void. The assessors have no jurisdiction. Bangs v. Snow, 1 Mass. 181; Stetson v. Kempton, 13 Mass. 272, 7 Am. Dec. 145.

So where the assessment is upon a nonresident for personal property, claimed, by reason of its location in the town where the assessment is made, to be taxable there, if it appears that the nonresident had no personal property assessable there, the tax is wholly void, even if he had taxable real estate there. The reason is that, the person assessed not being resident in the town where the assessment is made, and so not within the jurisdiction of the assessors, their right to assess him, so far as respects personal property, depends upon whether he has assessable personal property in the town. Unless he has such property there, their acts are void for want of jurisdiction.

Preston v. City of Boston, 12 Pick. 7, a leading case, affords a good illustration of the application of this principle. The plaintiff being domiciled in Medford, and having taxable personal estate, but having in Boston only real estate, was taxed in the latter place for both real and personal estate. He paid the taxes, and in an action to recover back the money it was held that, while the real estate tax was valid the personal estate tax was invalid, and he recovered that back. The ground of the decision as to the personal property was that the plaintiff was not an inhabitant of Boston, and so not liable to be taxed there at all on his personal property. As to that the assessors had no jurisdiction. In giving the opinion, Shaw, C. J., said: "One not liable-not domiciled-is not within the jurisdiction of the assessors any more than a stranger from' another state who should happen to be lodging at a hotel when the tax was assessed. The whole proceeding, therefore, in regard to him was without authority ab initio." See, also, Sumner v. Dorchester Parish, 4 Pick. 361; Inglee v. Bosworth, 5 Pick. 498, 16 Am. Dec. 419.

Where, however, there is personal property of a nonresident which is taxable in the town where it is situated, the assessors of that town have jurisdiction, and consequently the only remedy of the person aggrieved is by abatement. Little v. Greenleaf, 7 Mass, 236; Gray v. Kettell, 12 Mass. 161. Again, where a corporation owns real and personal estate, and is taxable for the real, and not for the personal, estate, a tax upon the personal estate is absolutely void. Manufacturing Co. v. Amesbury, 17 Mass. 461; Boston Water Power Co. v. City of Boston, 9 Metc. 199; Salem Iron Co. v. Inhabitants of Danvers, 10 Mass. 514-the ground of the decision in these cases. being that the corporation is not an inhabitant of the town for purposes of taxation. And the same principle is applied where the

assessors undertake to assess a tax in excess of what is called for or is allowed by law. Joyner v. Inhabitants of Egremont School Dist. No. 3, 3 Cush. 567; Cone v. Forrest, 126 Mass. 98.

These and similar cases all proceed upon the principle that an assessment made by assessors who have no jurisdiction is not the assessment authorized by statute. It is no assessment at all, and is absolutely void. As it is not the statutory proceeding, the statutory remedy is not exclusive.

Such an assessment, therefore, can be attacked collaterally in an action of tort against the assessors, where such an action will lie, or in an action against the town to recover back the money paid, or in defense to an action by the collector. These general remedies are not for those who are aggrieved by assessors acting within their jurisdiction, but are allowable to redress wrongs inflicted by persons who pretend to be assessors, but who are not such, because acting without jurisdiction.

Where, however, the tax is for a legal purpose, and the assessors have jurisdiction, whether it is based upon the fact that the person assessed be an inhabitant of the town where the assessment is made, or upon the situation of the property, or any other jurisdictional fact shown to exist, and they proceed essentially in accordance with the statutes, their decision as to the nature and amount of the taxable property of a person who has not brought in a list is valid. It cannot be attacked in any collateral proceeding, but must stand until changed in a proceeding under the statute for abatement. There are sound and obvious reasons for this rule, which are set forth at some length in Lincoln v. City of Worcester, 8 Cush. 55, 65, 66 [ante, p. 359].

Among the numerous cases where the doctrines above stated have been applied by this court, see, in addition to those already cited, Bates v. City of Boston, 5 Cush. 93; Howe v. Same, 7 Cush. 273; Bourne v. Same, 2 Gray, 494; Ingram v. Cowles, 150 Mass. 155, 23 N. E. 48; Carleton v. Ashburnham, 102 Mass. 348.

The defendant in the case at bar was an inhabitant of Lowell, and he had taxable personal property there. The only list he brought to the assessors was that of February 24, 1890, several months after the warrant had been committed to the collector, and even that purported to relate only to the property held by him as trustee. Being an inhabitant of the city, and having taxable personal property there, he was within the jurisdiction of the assessors. While the tax was in part against him as an individual, and in part as trustee, still it was all a personal tax. If valid, the collector could sue, distrain, or arrest, as well for the one part as for the other.

The assessors called for a sworn list of taxable personal property. Such a list should contain all such property held by a person either as an individual or in a representative capacity. In the absence of

such a list from the defendant, the assessors proceeded to consider his case. They had before them not only the question whether he was taxable for any personal property held by him as an individual, but also whether he was taxable for any such property held by him in a representative capacity. The whole case was before them, and it was their duty to investigate and decide it. That duty they performed, and they decided that he had taxable personal property, not only as an individual, but as a trustee, and they made an estimate thereof. The jury have found that in performing this work they "ascertained, as nearly as possible, the particulars of the personal estate held by the defendant as trustee, for the purpose of making this assessment," and that, "having obtained these particulars, they estimated such property at its just value, according to their best information and belief."

We are of opinion that the evidence fully justifies the finding. Indeed, the assessors seem to have been impressed with the importance. and magnitude of the question, and to have made unusual efforts to get at the facts, both as to the nature and value of the property. It is true that a tax upon real estate is separate and distinct from that on personal estate (Preston v. City of Boston, ubi supra), but we do not think the statutes intended that there should be a division of the tax on personal estate, so far as concerns the remedy for a person aggrieved.

We are not unmindful of the case of Dorr v. City of Boston, 6 Gray, 131. In that case it appeared that the plaintiff was a woman, and had no taxable property in this state. As to whether the case of Preston v. City of Boston, ubi supra, was rightly interpreted in that case, see Lincoln v. City of Worcester, 8 Cush. 62, and Bates v. City of Boston, 5 Cush. 97.

So far, therefore, as respects the nature and value of the property, and his relation to it, the grievance of the plaintiff, if any, is one of overvaluation, and his only remedy is by the statutory proceeding for abatement. He cannot avail himself of this portion of his defense in this action. Pierce v. Eddy, 152 Mass. 594, 596, 26 N. E. 99. *** The defendant's brief contains an elaborate argument in support of the proposition that our statutes relating to the assessment of taxes are unconstitutional, because they do not give the party assessed an opportunity to be heard. But he does have full opportunity to be heard before the assessing board, if he desires it, before the demand becomes conclusively established against him, and that is enough. Cooley, Tax'n, pp. 361, 363, 364, and cases cited.20

There was ample evidence of a demand upon which to base interest, and, in the absence of anything to the contrary in the brief of the defendant, we consider the exception on that point waived.

20 On this point, see Glidden v. Harrington, 189 U. S. 255, 23 Sup. Ct. 574, 47 L. Ed. 798 (1903).

Without going over the exceptions further in detail, it is sufficient to say that we see no error of law made by the presiding judge at the trial.

Exceptions overruled. 21

21 See Weber v. Baird, 208 Ill. 209, 70 N. E. 231 (1904): "We think a court of equity may revise the decision of the board of review assessing property to a taxpayer as having been owned by him and subject to taxation and omitted from the schedule prepared by him. The manner in which the board of review conducts its investigation is such that the taxpayer is not advised of the proofs heard or information obtained by the board relative to the ownership by him of property said to have been omitted from the schedule, nor has he an opportunity to contest the truth of such proof or such information before the board. He cannot appeal from any decision of the board, other than from a decision that certain property is not exempt from assessment for taxation.† Dutton v. Board of Review, 188 Ill. 386, 58 N. E. 953. Equity will therefore afford a remedy, and hear and determine whether the board correctly decided that the taxpayer was the owner of the property which the board assessed against him as having been omitted by him from his schedule. The inquiry in such an equitable proceeding is, what property did the board decide the taxpayer owned and had omitted from his schedule, and did he own that property? What the board decided is to be determined by the record made by the board of its decision. A taxpayer seeking the aid of equity must therefore show the record made by the board, and then he will be heard to show that he did not own the property there specified in the record. If, in fact, the board did not enter its decision on the assessment books, or if its decision did not show on such books the kind and class of property said to have been omitted, such failure would vitiate the assessment, unless in some way cured. But a taxpayer cannot ignore the record made by the board of review, which, if lawfully rendered, would show specifically the property or class of property which the board decided the taxpayer owned and had not listed for assessment, and be allowed to overturn the decision by seeking, in a general way, to deny that he had any other property than that he had listed."

See, also, Vittum v. People, 183 Ill. 154, 55 N. E. 689 (1899), assessing too high a rate.

Section 15 of the tariff act of June 10, 1890, allows an appeal from the decision of the Board of General Appraisers, as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, to the Circuit Court, for a review of the questions of law and fact involved in such decision. However, findings of the appraisers upon conflicting evidence are treated much like findings of a jury, and are set aside only if clearly against the evidence. In re Kursheedt Mfg. Co. (C. C.) 49 Fed. 633 (1892); In re White (C. C.) 53 Fed. 787 (1893). Method of proof cannot be controlled by treasury regulations. Pascal v. Sullivan (C. C.) 21 Fed. 496 (1884).

Compare the principal case Harrington v. Glidden, where there was an appeal from the action of the assessors.