delivered the opinion of the court:
In 1861, the assessor of Hennepin township, called upon Pulsifer, the defendant in error, to furnish him with lists of his personal property for taxation, and also of the personal property belonging to the estate of his deceased father, of which he was one of the executors. Pulsifer furnished the lists, valuing his own personal property at $11,608, and that of the estate at $2,700. The assessor, not being satisfied with these valuations, increased the former to $25,000, and the latter to $27,000, as the true estimated value, and then, under section eight of the revenue law, doubled these amounts as a penalty. He also doubled the valuation of Pulsifer’s real estate. He also examined the will of the deceased Pulsifer, 4 ' and finding that it provided for sundry bequests amounting to about $8,000, he doubled this sum, and added it to the amount already assessed against the estate. He gave Pulsifer notice of what he had done, and of the time and place of the meeting of the board for the correction of lists.
Pulsifer appeared at the meeting of the board, but refused to make an affidavit, as required by the thirty-second section of the revenue law, to the effect that his personal property did not exceed a certain sum, and in consequence of such refusal, the board did not reduce the assessments. Pulsifer afterwards sued out an injunction to restrain the collection of the taxes on these assessments, and, on the final hearing, the Circuit Court relieved him of the penalties, and of the taxes on the legacies, but refused any relief as to the increased valuation. The tax collector brings the case to this court.
So far as relates to the tax levied upon the personal property of the complainant, held by him in his individual right, he has not made a case entitling him to relief either in his bill or in his proofs. The bill, being for an injunction, was necessarily verified by affidavit, and it nowhere contains an averment that the valuation of $25,000 fixed by the assessor, was over the actual value of the complainants personal property, and there is not the slightest attempt to show this by the evidence The only averment in the bill upon this point, is as follows:
u That complainant did make such lists, and they were not false or fraudulent; because there was no' complaint that he had omitted any taxable property in his lists, except said stocks, but that he had not valued his moneys and credits, and the moneys and credits of said estate, as high as the assessor did; that valuations are matters of opinion, about which men equally honest differ.”
This can only be regarded as evasive and frivolous. The complainant comes into court asking relief from! what he alleges to be an excessive assessment. Yet how can: he hope for the interference of the court, unless he is able to aver distinctly, and to show ■ presumptively upon the hearing, that there has been such excess ? Unless he can do this7 what standing has he in court? The law gives -the assessor the right to value personal property if dissatisfied with the value fixed by the owner. This assessor exercised that right. As an officer of the law, vested with an authority to a considerable extent discretionary, and acting within the scope of that authority, his action must be presumed to have been correct until the contrary is duly alleged, and so far proven as to repel the prima facie presumptions which attach to and protect official action performed within the scope of official authority. Yet this case, so far as it relates to the personal property of the complainant, proceeds in defiance of these familiar principles. And not only are the bill and proof fatally defective in this regard, but there is another circumstance in the case which furnishes a powerful reason why'tlie court should refrain from interference on behalf of this complainant personally. The thirty-second section of the revenue law of 1853, provides that, on a certain day, “ the assessor, town clerk and supervisor shall attend at the office of the town clerk for the purpose of receiving the assessment list, and on the application of any person considering himself aggrieved they shall review the assessment, and when the person objecting thereto shall make an affidavit that the value of his personal estate does not exceed a certain sum specified in such affidavit, the assessor shall reduce the assessment to the sum specified m such affidavit.” How this complainant appeared before the board—was informed of this law — was told that if he would make the affidavit, they would fix his assessment in conformity thereto, and, upon some frivilous pretext, he refused to make an affidavit, and -the board, after waiting upon him a week, closed and returned,, the books. He had the means of redress in his own hands, if he had really been aggrieved, and declined to adopt them. From his refusal to make an affidavit at that time, from the fact that in his sworn hill he was unable to approach more nearly to what his counsel must have known was a material averment than the evasive statement we have already quoted, and from the fact that he offered no evidence whatever on the hearing tending to show an excessive valuation, the inference is irresistible that the valuation was not too large, and in the face of all these facts, it is folly to expect the interposition of a Court of Equity.
While, however, in regard to the personal property owned by Pulsifer in his own right, the assessor seems to have only done his duty, he'wholly transgressed his power in the residue of his action. He had no right whatever to double the assessment of the real estate.
Section eight of the revenue law of 1853, page 1050 of Scates’ Statutes, provides that “if any person shall give a false and fraudulent list, or shall refuse to deliver to the assessor, when called on for that purpose, a list of his or her taxable property, as required by law, the assessor, as a penalty therefor, shall assess the property of such person at double its value.” How it, is true, the fourth section requires persons to list both their real and personal estate, so far as the real estate is situated in the town where such persons reside. But it is the sixth section which requires persons “ to make out, sign and deliver to the assessor, when required, a certified statement of all their personal property,” etc., and the section goes on to specify, with great minuteness, and under fourteen different heads, what this list shall contain, it being wholly devoted to personal property. Then follows the section we have quoted, imposing a penalty for “a false list.” How this “false list” clearly refers to the list of personal property which the preceding section has just required to be made out by all persons “ when called on for that purpose.” And when the same section provides for doubling the assessment of the property ot a person refusing to give in a “list,” or giving in a “false list,” can the law be reasonably supposed to refer to any other than that personal property whose listing has been required by the preceding section, and from a delinquency in regard to which,' has grown the penalty ? The law authorizes the assessor, in cases of refusal to list, or of false listing, himself to list the property at double its value, as a penalty for the fraud sought to be practised upon the revenue in regard to that specific property,
. Besides it is the assessor himself who is to assess the value of real estate in the first instance. The thirty-ninth section of the act requires him to do this “ from actual’view, or from the best sources of information that can be obtained.” It is the act of the assessor, not of the owner, and in this very case the assessor testifies that he himself fixed the value of the real estate in conjunction with the owner.
There is another very potent reason why real estate should hot be doubled in valuation under this penal power. It often happens that real estate is listed in the name of persons who are not the actual owners. This is sometimes the result of inadvertence, lands being entered year after year, by the officers, in the same name, though they may have been repeatedly sold. Sometimes it proceeds from design, for the sake of perfecting a colorable title by the payment of taxes. How if a person having a tax title, subject to redemption by minor heirs, has the land listed in his own name, and double taxes can be and are assessed upon it under this statute, the consequence is, that when the infant owners come to redeem, they find themselves subject to a penalty for an offence which they have never committed. They are required to pay double taxes upon their property because another person has attempted to defraud the revenue in regard to certain other property. We are of opinion that the law should receive no construction which would lead to consequences of this character. It is urged, however, that the second section of the revenue law, in giving certain definitions, prescribes among other things that the term “ property,” whenever used in this act, shall be held to include both real and personal property. When the term is used in a general sense, we should adopt this rule of construction, as it is to such cases that it is manifestly intended to apply; but in an act of eighty-three sections, where the legislature is sometimes speaking of real, and sometimes of personal property, we must be permitted to determine, from the context, which is the kind of property referred to, without a merely arbitrary application of this rule. To hold that the term “ property ” ex vi termini means both realty and personalty wherever used in the statute, would involve us in hopeless confusion in its construction, and indeed abolish all distinctions between the two kinds of property.
The assessor also transgressed his power in adding the legacies to the valuation of the estate of John Pulsifer deceased. He had already changed the valuation from $2,700 to $27,000. He then examines the will, and finds certain legacies given thereby. He adds the legacies to the amount already assessed. This is merely taxing the same property twice over in the hands of the same person, and is not admissible.
Heither had the assessor the right to double the valuation of the property assessed to the estate of John Pulsifer. The difference between the eighth and ninth sections, in this respect, is very marked. While the latter authorizes the assessor to charge at its true value “ any property ” that has not been fairly assessed, the eighth section only authorizes doubling the true value of the property of persons who have sought to perpetrate a fraud. The language .is, “ if any person shall give a false or fraudulent list, * * the assessor, as a penalty therefor, shall assess the property of such person at double its value.” The penalty is to be confined, as it ought to be, to the property “of such person.” The fourth section requires persons to list not only their own property, but also that in regard to which they aré clothed with a fiduciary character. A guardian is required to list the property of his wards. Suppose he returns a fraudulent, list. Under the ninth section, the assessor can correct the list by charging the property at its true value, but he can not, under the eighth section, impose the penalty of doubling the true valúe, because the penalty is confined to the property of persons who have sought to commit a fraud. It would be grossly unjust to impose a penalty on innocent heirs, because the guardian has made a false return, or to burden an estate with a double tax because the executor has' been guilty of a like offence. It is no answer to say that the guardian and the executor can be made to refund the penalty to the wards or the distributees. The remedy would be often doubtful and always expensive, and even if it could always be made effective, it would be a violation of all principle, that the effect of a penal law should be made to fall primarily upon the property of innocent parties. We find nothing either in the letter or spirit of this statute requiring us to give it so unjust a construction.
The decree of the court below will be modified in conformity with these principles. The collector will be permitted to collect the tax upon the doubled value of the personal property assessed to the complainant in his individual right, and also the tax upon the $27,000 charged to the estate of John Pulsifer, without doubling it, and without adding the legacies thereto, and also the tax upon the value of the real estate as first assessed, without doubling it. The case is remanded for the purpose of having the decree thus amended.
Decree reversed.