40 Vt. 437 | Vt. | 1868
The opinion of the court was delivered by
This cause came into this court on a general demurrer to the defendant’s plea of justification. It is insisted by the plaintiff’s counsel that the plea is bad, because it does not allege that the town had a quota to fill; nor that there were any men in Hinesburgh liable to military duty, or subject to draft; nor that there was a rebellion, nor that it was the duty of every town to furnish a quota. It is obvious that it was not necessary for the defendant to allege or set forth in his plea, all the circumstances aud particulars which rendered it necessary in the judgment of the legal voters of Hinesburgh, to raise the tax in question. Section 95, of chapter 15 of the General Statutes, provides that any town, at a town meeting legally warned and held, may grant and vote such sums of money as they shall judge necessary for the maintenance and support of the poor ; for laying out and repairing highways ; for building and repairing bridges ; for the prosecution and defence of their common rights and interests, and for all necessary and incidental charges within the town. The act of 1862 provides that towns may grant and vote such sums of money as they may judge best, to be paid to those who have volunteered, or may hereafter volunteer from said town, to serve in the volunteer or militia regiments or companies of this State in the service of the United States. The act of 1863 provides, among other things, that towns may grant and vote such sums of money as they may jndgfe best, to .be paid to drafted men, who enter the service of the United States. These several acts state in general terms the purposes or objects for which towns, in their discretion, are authorized to grant and vote money. Section 3, of chapter 15 of the General Statutes, provides that all town meet
2. The next objection urged by the plaintiff is, that the warning does not justify the action and vote of the town under it. It appears that so much of the warning as related to taxation was, “ to ascertain whether the town would vote a tax on the grand list, for the purpose of paying bounties to soldiers, and paying its indebtedness.” The town had power to raise money for those purposes, and we think they were sufficiently expressed in the warning. The town, at said meeting, voted to raise a tax, for the purposes mentioned in said warning, on the grand list of said town, of two hundred cents on the dollar. This vote, upon its face, expressly refers to the warning for the purposes for which .the money was raised; it expressly states that the money was raised for the purposes mentioned in the warning; it sufficiently expresses that the money was raised for the purpose of paying bounties to soldiers, and paying the indebtedness of the town, and it does not appear that the money was raised for any other purpose. The town, in the passage of the vote, did just what the law and the warning authorized it to do.
3. It is objected that there is no article in the warning authorizing the vote making the tax payable to the selectmen, but this objection, we think, is not well founded. It is true that town treasurers are the general depositaries of money belonging to the towns, and the usual course is for the' collectors to pay over the taxes to them. But there is no statute requiring taxes, when collected, to be paid by the collector to the treasurer, and good reasons might exist why the money might not properly be paid to him, the sufficiency of which would be for the town, or its officers, to determine. In Clemons v. Lewis, 36 Vt. 673, it was held that a direction, in a warrant, to the
4. It is claimed by the plaintiff that there was no law giving towns the right to vote‘taxes for the purposes named in the warning; that the act of 1862, applies only to such volunteers as serve in the volunteer or militia regiments, or companies of this state, in the service of the Uuited States, and to payment of deb's contracted for paying bounties to such volunteers ; that the act of 1863 applies only to drafted men ; that it does not appear that any men were dratted from Ilinesburgh, and that it does not appear, by the defendant’s plea, that the volunteers to whom this money was to be paid, belonged to such regiments or companies. This objection eanuot avail the plaintiff. We have before observed that it sufficiently appear by the plea, that the town had power to vote money, for the purposes named in the warning and vote. It does not appear, by the plea, that the soldiers to whom the money was to be paid, were not in the regimeuts of this state. The legal presumption is, they were in such regiments, or companies. The question is not, whether the town raised money, and directed it paid over for an unlawful purpose. The purposes for which the money was voted were lawful, therefore the purpose for which the town may ultimately apply the money can not affect the validity of the tax,-but is a matter between the town and its officers. 36 Yt. 673.
5. It is said by the plaintiff’s counsel, that the warrant under which the defendant attempts to justify, is illegal and void, beceause it is signed by Noble L. Partch, a justice of the peace, and directs-
G. It is insisted by the plaintiff that the plea is bad, because the property was posted to be sold at F. W. Baldwin’s barn — a place not alleged to be a public place, and was sold there. Whether Baldwin’s barn was or was not, at that time, a public place, cannot be determined on demurrer. The presumption is, that it was a public place at the time the property was posted. In Austin v. Soule, 86 Vt. 645, the court held that the words, public place, as used in the statute requiring goods levied upon and sold on an execution, to be advertised and sold at some public place,, mean a place where the advertisement would be likely to attract general attention, so that its contents might reasonably be expected to become' a matter of public notoriety ; that a barn, dwelling house, shed, or even a rock or tree, if answering this condition, may be a public place within the meaning of the statute. The same construction should be given to the words “ public place ” which occur in the statute relating to the posting of goods destrained for payment of faxes. It is the duty of the officer who has levied upon goods by virtue of an execution, or distrained goods for the payment of taxes, to select some public place at which he may advertise and sell the property, and in making such selection he is required to act fairly. The main object or purpose to be sought in sales of this character is to secure for the sale such degree of publicity as will be likely to insure good faith in the sale, and to protect the rights of all interested in the property against collusion or fraud. The statute should receive a liberal construction when.no want of good faith is imputed to the officer. But in this case, we think the allegations of the plea show a substantial, compliance with
7. It is urged by the plaintiff that the requisite time was not given after distraining the property, before posting it for sale, and that the time after posting and before the sale, was less than the law requires. We think the proceedings of the officer are open to no valid exception in respect to the time of keeping the property, nor in respect to the time of posting and selling it. The property was seized on the 21st of February, it was advertised on the 25th of February, to be sold on the 3d day of March, and sold on that day, making ten days from the time of the seizure to the time of sale, and six days from the time of posting to the day on which it was sold, which is the full time required by law. The only remaining question relates to the constitutionality of the law under which the tax was voted. We have no occasion in this case to enter upon an examination of this question, because the same question was before the court at the last General Term, and the decision in that case will be announced in due time. We are of opinion that the defendant’s plea is sufficient. The plaintiff may replead under the general rule as to costs.
The judgment of the county court is reversed, pro forma, and the case is remanded.