Section 14, Gen. Laws, c. 62, as amended by s. 2, c. 53, Laws of 1881, requires that every telegraph corporation shall pay an annual tax on the valuation of their property as near as may be in proportion to the taxation of other property throughout the state; and it is made the duty of the state board of equalization to assess the same at the average rate of taxation of other property. Section three of the last named act requires the assessment to be made and certified to the state treasurer by the thirtieth day of September, that the tax shall be paid on or before the thirtieth day of October, and that all property of the corporation, on the first day of April preceding, shall be liable for its payment. The effect of these provisions is to subject telegraph corporations to the same taxation that other owners of property are required to pay.
Section 9, c. 57, Gen. Laws, provides that "Interest at ten per *Page 270 cent. shall be charged upon all taxes not paid on or before the first day of December, after their assessment, from that date, which shall be collected with said taxes as incident thereto." The plaintiffs' taxes for the years 1884 and 1885 were seasonably assessed, and duly certified to the state treasurer. Under the provisions of s. 9, c. 61, Gen. Laws, the plaintiffs appealed from the assessment to this court, whose duty it is to make such orders as justice requires. On the appeal it has been adjudicated that the assessment and tax in each of the years was too large by two fifths, and the same was reduced to three fifths at the June term, 1886. The plaintiffs have not paid or offered to pay any part of either tax; and the question is whether they should be required to pay interest under s. 9, c. 57, Gen. Laws, which requires that interest shall be charged and collected on all taxes not paid on or before the first day of December after their assessment, as incident to said taxes. This statute makes the interest a part of the tax to be collected. It would be unjust to require the plaintiffs to pay interest on the two fifths that are abated and disallowed. But the plaintiffs claim that they should not be required to pay any interest, as the final determination of their assessment was not made till June, 1886, and none could accrue under the statute till the December after; but we think that when the state board of equalization made their assessment and certified it to the state treasurer, they made the assessment required by the statute, and that it was not the intention of the legislature to give the plaintiffs the use of the money justly due the state on or before December 1, 1884 and 1885, one and two years' interest as a compensation for taking the appeal. All other tax-payers either paid their taxes on or before the first of December of these years, or became liable to pay interest thereafter till they did pay them, and justice requires that the plaintiffs should pay interest on their just and equal portion of the public burden due the state on or before the first of December in each of these years. Had the plaintiffs tendered or offered to pay, when due, the sum afterwards found to be their proportional share, and the state had declined or neglected to take the same, a different case would be presented. Heyward v. Hartshorn, 55 N.H. 476, 483; Thompson v. Railroad, 58 N.H. 524. A tax-payer, appealing from an excessive assessment, may be unable to determine the exact amount which will be found by the appellate court to be his share of the public expense. He may be unable to protect himself against the interest that will accrue after the first of December by paying the exact amount of his tax debt before it is ascertained. But this is not a reason for giving him an exemption that is not enjoyed by his neighbors who do not appeal. In an action of contract or tort, the defendant is frequently unable to protect himself against interest and costs by paying into court the exact amount of damages before they are assessed. The amount he will pay for the purpose of protection *Page 271 is left to his judgment. The appealing tax-payer can protect himself against interest by paying enough of the amount assessed, and afterwards recovering any excess that may be abated.
It is said, however, that if the plaintiffs had paid the taxes as first certified, they would have been remediless as to the two fifths abated on the appeal. It is true that the state cannot be sued without its consent, but in the proceedings for abatement provided for in s. 9, c. 61, Gen. Laws, under which the plaintiffs take this appeal, the state voluntarily makes itself the party defendant, subject like other parties "to all such orders as to costs and security for costs, and upon all other matters, as justice may require." This gave authority for any order that justice might require for the satisfaction of any judgment of abatement that the plaintiffs should recover in the case. Edes v. Boardman, 58 N.H. 580, 585,586.
The plaintiffs are charged with interest on the sum found due, on the appeal of each year from the December after the assessment was made by the board of equalization, at the rate of ten per cent.
Case discharged.
All concurred.