Berlin v. Gorham
34 N.H. 266
N.H.
1856
Check Treatment
Bell, J.

By thе statute of 1828, (Laws, Ed. 1830, p. 301,) relating to the settlement of paupers, which is reenacted without material change in the Devised Statutes, ch. 65, see. 1, cl. 6, (Comp. Stаt. 157,) “ all persons, dwelling and having their homes in any unincorporated place at the time when the same shall be incorporated into a town, shall therеby gain a settlement therein.” It was objected that to make an incorporation of a town effectual, there must be a legal town meeting holden in it; аnd as the pauper, though he resided in the town at the passage of the act, removed before any meeting was hold-en, he did not gain a settlement. This оbjection rests upon the *275idea that the rule which applies in the case of private corporations, that the act is ineffectual until it is acсepted by the corporators, governs also the case of public corporations, like towns. See A. & A. on Corp. 68.

But there is no such rule in the case of public corporations of a municipal character. The acts of incorporation are imperative upon all who come within their sсope. Nothing depends upon consent, unless the act is expressly made conditional. No man who lives upon the incorporated district can withdrаw from the corporation, unless by a removal from the town ; and by the mere passage of the law the town is completely constituted, entitled to the rights and subjected to the duties and burdens of a town, whether the inhabitants are pleased or displeased. The legislature has entire control over municipаl corporations, to create, change or destroy them at pleasure, and they are absolutely created by the act of incorporation, without the acceptance of the people, or any act on their part, unless otherwise provided by the act itself. The People v. Wren, 4 Scam. 269; Warren v. Mayor, &c., of Charlestown, 2 Gray 104; Mills v. Williams, 11 Ired. 558; The State v. Curran, 7 Eng. 321; Pire Department v. Kip, 10 Wend. 267; The People v. Morris, 13 Wend. 337.

By the Revised Statutes, ch. 34, sec. 4, (Comp. Stat. 106,) “ any ‍‌‌‌‌‌‌​‌‌​‌​​‌‌‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​‌​​​​‌‌​​‌‌‌‍town may choose by major vote one or more overseers of the poor, &c. If such overseers are not сhosen, the selectmen shall discharge the duties and have the powers of those officers.”

It appears that no overseers were chosеn in Berlin, and the notice was signed by the selectmen, with the addition merely of “ Selectmen of Berlin.” It is objected, that no overseers being chosen, it was neсessary it should be signed by the selectmen as overseers. The provision of the Revised Statutes relative to notice is, that u no action shall be sustained against ‍‌‌‌‌‌‌​‌‌​‌​​‌‌‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​‌​​​​‌‌​​‌‌‌‍any town or person chargeable, &c., unless a notice in writing, signed by the overseers of the poor, stating the sums so expended, shall first have been givеn to such town or person.” This provision, it is said, should be construed strictly, and the notice be held void, because it was not signed by the selectmen as overseеrs. But *276we do not understand that any such principle has ever been adopted here. In most of our towns no overseers are chosen, and the duties of оverseers of the poor are a part of the ordinary duties of the selectmen. It has, so far as we are aware, never been usual for the sеlectmen to sign such notices as overseers, or as selectmen and overseers, but merely as selectmen; and no motive of convenience or policy requires any change.

But it is said there is a variance between the notice as produced and that alleged in the writ; that the allegation is descriptive of the notice, and therefore the difference in the addition to the signatures is material. It seems to us, however, that the allegation is dеseriptivé rather of the official character of its signers than of the notice. It is not necessary to state the terms of a writing, if its legal effect is stated, аnd the legal effect of the word selectmen was in this case selectmen and ex officio overseers of the poor, just as it is alleged in the declaration. Thе ruling of the court on this point ‍‌‌‌‌‌‌​‌‌​‌​​‌‌‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​‌​​​​‌‌​​‌‌‌‍seems to us to have been correct. The cases cited for the plaintiff are in point to support it.

It is objected, that a daughter and grand-daughter of one of the paupers lived in his family, and the supplies were used in the family. It is said these supplies should be charged for all, if all were paupers, and otherwise if furnished for the paupers alone. This seems to us, as it was regarded by the court, as a mere question of fact and not a matter of theory. Cases may be supposed where a small amount of aid may enable a family to support a sick and destitute member. A persоn who is sick may need a nurse, the nurse must be paid and boarded; supplies for the nurse are supplies for the sick person. A sick woman’s family consists of a daughter and her child. The daughter is willing and desirous to act as nurse, but she cannot board herself and child, while she is doing so. Supplies furnished for such a family are as truly necessaries for the sick person, as food or medicine for herself. The situation of the sick admits of such infinite varieties that no arbitrary rule can be laid down. The plaintiff must satisfy the jury that the *277amount and kind of supplies, under all the circumstances, were suitable and proper. The cases cited by the plaintiff are not in conflict with this view. In Barnstead v. Strafford, pay of two nurses was charged without objection, and it cannot be open to doubt that if supplies were furnished for the board of the paupers and the nurses, the charges would be equally proper to be allowed. The charges for nursing and watching fall under the same rule. If extravagant amounts of supplies were furnished, or high prices paid, the town can recover what ought reasonably to have been expended. If no mоre than was reasonable was furnished, or if the proper amount can be ascertained, the town will not be barred from recovering because the most discreet mode of administering the supplies was not adopted.

Where there was a controversy whether the plaintiffs had not charged for money which they had neither paid nor become liable to pay, the ruling of the court seems to have been reasonable in itself, and consistent with the ease before referred to. If the charge was intentionally made too large, it was to be ‍‌‌‌‌‌‌​‌‌​‌​​‌‌‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​‌​​​​‌‌​​‌‌‌‍rejected, but if it was done by mistake, or without a fraudulent object, the whole was not to be rejected, but the sum justly due might be recovered. It is always in the power of the defendant town by a confession to throw the risk of a triаl, in regard to items deemed extravagant, upon the plaintiffs.

The pauper was assessed for his poll seven years in Gorham. In one or more of thosе years the tax was illegally assessed, and was not paid. If part of the taxes is illegal it is enough to pay the balance. Lisbon v. Bath, 1 Foster 319. To gain a settlement by taxation on the poll alone, the party must reside in the town, and being taxed for his poll for seven years in succession, must have paid all taxes legally assessed on his poll and estate during said term. As the illegal tax was not paid, the only question is, whether, if a party is illegally taxed, that is being taxed within this statute. An illegal tax may be a nullity, absolutely vоid, no tax at ah in law, or ‍‌‌‌‌‌‌​‌‌​‌​​‌‌‌​‌‌‌‌​​‌‌‌​​​‌​​​​​​‌​​​​‌‌​​‌‌‌‍it may be a voidable tax, invalid; one which a party may refuse to pay, if he pleases, but *278which if he pays he cannot reclаim his money. The case says it Ayas not duly and legally assessed. This language points to a defect in the assessment, not in the power to assess; to a voidablе rather than a void tax; in which case there would be a tax and a failure to pay, and therefore no settlement gained. Or the tax being avoidable was actually avoided, so that the party could not be regarded as being taxed for seven years in sue-cession, and consequently gained no settlement.

Judgment on the verdict.