Summary
In Nottingham v. Newmarket Manufacturing Co., 84 N.H. 419, 151 A. 709 (1930), that Court interpreted chapter 187, § 1 of the 1913 New Hampshire Public Laws. That statute required that a foreign corporation seeking to do business in New Hampshire "appoint the secretary of state... to be its true and lawful attorney upon whom lawful process... may be served."
Summary of this case from Holloway v. Wright Morrissey, Inc.Opinion
Decided October 7, 1930.
Under P. L., c. 66, s. 42 taxes may be collected by personal action against a delinquent taxpayer. And so of taxes assessed against a delinquent foreign corporation which has rendered itself amenable to the service of process under P. L., c. 231, s. 1. A tax-assessment is a judgment not subject to collateral attack and hence in a personal action under P. L., c. 66, s. 42 to recover a tax the question whether the defendant has taxable estate in the taxing district is not open but has become res adjudicata by the assessment, subject only to the remedy by petition for abatement.
ASSUMPSIT, to recover taxes assessed against the defendant for the years 1921 to 1926 inclusive.
The parties agree to the following facts: The defendant is a corporation organized under the laws of Massachusetts and having its usual place of business at Newmarket in this state. It has complied with the provisions of Laws 1913, c. 187, s. 1 (P. L., c. 231, s. 1), and service of the writ was made upon the secretary of state. On the above mentioned dates it was not engaged in any business in Nottingham and possessed nothing of value there unless its interest under a certain indenture between it and the Lamprey River Improvement Company, dated June 7, 1917, relating to the maintenance of certain reservoirs located mainly in Nottingham, which it sold to the Improvement Company in 1913, constitutes taxable property within said town.
The indenture in question, which supersedes a prior contract between the parties dated March 14, 1916, provides for the proper inspection and control of the reservoirs by the Lamprey River Improvement Company "during such time as Pawtuckaway and Mendum's Ponds, or either of them, continue to be used as reservoirs for the storage of water for the use of the Manufacturing Company, or for the use of the Newmarket Electric Company, or their respective successors and assigns." It is stipulated that "the Improvement Company, its successors and assigns, shall at all times control the operation of all its gates, dams and spillways and the outlets of said reservoirs, or either of them, in such a manner as will best equalize the flow of water in the Lamprey River for the benefit of the Manufacturing Company and the Newmarket Electric Company, and their respective successors and assigns, as the owners of water privileges on the Lamprey River." There are further stipulations regarding repairs and replacement.
The reservoirs, comprising Pawtuckaway and Mendum's Ponds, and their appurtenant properties have been taxed to the Lamprey River Improvement Company since 1913, and that company has paid the taxes assessed thereon.
By agreement of the parties the following questions were transferred by Burque, J., without a ruling: 1. Whether the suit can be maintained against the defendant. 2. Whether the defendant has any taxable property within the town of Nottingham.
George R. Scammon, for the plaintiff.
Allen Hollis and Donald Knowlton, for the defendant.
1. It is stated in the plaintiff's brief that the suit is brought by the selectmen and tax collector in the name of the town (P.S., c. 60, s. 17; P. L., c. 66, s. 42), and that the designation of the town as plaintiff is merely for convenience. Neither the writ nor a copy of it is before the court, but the defendant does not contest the statement, and it is therefore presumed to be correct. See Canaan v. District, 74 N.H. 517, 536; Winchester v. Stockwell, 76 N.H. 193, 194.
The defendant takes the position that since it is not a resident of Nottingham (Woodsum Steamboat Co. v. Sunapee, 74 N.H. 495), no suit can be maintained against it for the purpose of collecting taxes due the town. It contends that taxes assessed on the property of non-residents are a charge against the taxed estate only, and not a personal charge against the owner, and that if a tax is legally assessed against a non-resident defendant, a lien is created upon the property taxed and that such tax must be collected, if at all, by a sale of the property. In support of this contention the following cases are cited: Dewey v. Stratford, 42 N.H. 282; Cocheco Mfg. Co. v. Strafford, 51 N.H. 455, 471; Bowles v. Clough, 55 N.H. 389.
These decisions correctly interpret the statutes which were in force the time they were rendered, but the law was later changed by the passage of chapter 28 of the Laws of 1881, entitled "An Act to Facilitate the Collection of Taxes." Section 1 of this act is as follows: "The selectmen of any town and the mayor and aldermen of any city may, in a particular case, cause any tax collectible by any town or city officer to be collected by suit at law or bill in equity." See P.S., c. 60, s. 17; P. L., c. 66, s. 42.
Prior to the passage of this statute, selectmen in performing the judicial duty of assessment had no jurisdiction over the person of a property owner who did not reside in the town, and while the set does not in express terms enlarge this jurisdiction, it must, if liberally interpreted, be given that effect. It will be noted that the statute refers broadly to the collection of "any tax."
It was the obvious purpose of the act to place the collection of taxes on the same basis as the enforcement of any other right. Where the defendant is not a resident of New Hampshire and has not been served with process within the state, it is clear that the court has no jurisdiction over his person. Such was the situation in Winchester v. Stockwell, 75 N.H. 322. But the present defendant is a foreign corporation amenable to the provisions of Laws 1913, c. 187 (P. L., c. 231). It has complied with the requirements of section 1, and by so complying has become for all practical purposes of litigation a resident of the state. Indeed, it has been expressly held that service upon the secretary of state in accordance with the provisions of the section in question "gives the court jurisdiction of the corporation as well as of the property attached on the writ." Quimby v. Company, 78 N.H. 174.
The suit can be maintained against the defendant.
2. Since the effect of the statutes is to give the selectmen jurisdiction over the corporation, the question whether the defendant has taxable estate in Nottingham is not open in this suit. The rule that a tax assessment is a judgment and cannot be collaterally attacked is fundamental. Jaffrey v. Smith, 76 N.H. 168; Canaan v. District, 74 N.H. 8; Farmington v. Downing, 67 N.H. 441. The defendant's only remedy was by petition for abatement. The second question transferred is therefore immaterial in this proceeding.
Judgment for the plaintiff.
All concurred.