Blodgett v. Holbrook

39 Vt. 336 | Vt. | 1866

The opinion of the court was delivered by

Peck, J.

The defendant justifies the taking of the horse in question, as collector under a rate hill and warrant for the collection of a town tax. The questions presented are in relation to the legality of the vote raising the tax, and the validity of the list upon which it was assessed.

The defendant introduced a record of the proceedings of the town at its annual March meeting in 1863, from which' it appears that one of the subjects of the meeting, specified in the warning, was, “to see if the town will raise money to pay the bounty promised to soldiers.” Under that article the town “voted to raise fifty-five cents on the dollar of the grand list to pay the bounty offered to soldiers.” In the county court the plaintiff claimed that the vote, upon its face, showed that the money was raised for a purpose not authorized by law; and the court decided that the vote was apparently for a legal purpose of taxation, to this the plaintiff excepted. The act of 1862 on this subject provides, among other things, that towns may grant and vote such sums of money as they may judge best, to be paid to those persons 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; or for the purpose of paying any debts contracted by the selectmen, to pay any bounty to such volunteers, agreeably to any previous'vote of the town, or for the purpose of defraying the expense and amount of bounties to such volunteers, which bounties may have been paid to such volunteers by private subscription, or from private means. This act clearly gives the right to towns to raise money to pay bounty to soldiers. It is insisted that this vote is too general and indefinite. But all that is necessary in this respect is that a vote of a town raising money should indicate in general terms, the purpose or object for which the money is raised, and if that purpose or object is such as comes within the scope of the powers of the town, it is sufficient. It is not necessary to the validity of the vote that it should state the particular facts which show the present necessity of the town for the use of the money. The object specified being within the powers of the town, it is to be intended that the town has judged properly as to tbe occasion and necessity for the exercise of the power in the particular instance. The objection that the vote is too general can not prevail. Nor is the objection that the money was raised, in the language of the vote, to pay the bounties offered to soldiers, of any force. It is immaterial to the validity of the vote whether the bounty had been offered, or was thereafter to be offered to volunteers.

It is sufficient that it appears from the vote that the money was raised for an object for which the town had power by law to raise money. The town had power under the act of 1862 to raise money to pay volunteers, and the vote sufficiently expresses that to be the object. The objection taken at the trial, “that the vote upon its face showed that the money was raised for a purpose not authorized by law,” was properly overruled. It is now also objected that the vote does not follow the warning, in this, that the warning is to see if the town will raise money to pay the bounty promised to soldiers ; and in the vote the word offered is substituted for promised. This difference in phraseology is too slight to affect the validity of the vote ; nor can this objection properly be raised here, as it does not come within the scope of the objection taken at the jury trial.

The next question is, whether the county court erred in rejecting the evidence offered by the plaintiff to show that the money was raised for a purpose not legitimately within the power of the town, that is, to pay certain notes the selectmen had given to certain soldiers as bounty, to induce them to enlist to the credit of the town.

It is very questionable, where the vote of a town raising money shows that it was regularly raised for a legal purpose, whether it is competent to avoid the vote by showing by parol, that it was intended to be used, when collected, for a purpose not legal, and thereby njake the constable a trespasser in collecting it. If a tax is legally voted for a legal object, it would seem that it might lawfully be collected, and that the records of the town under which it was imposed should determine its legality, and if the officers of the town misappropriate the money, it should be a matter to be settled between them and the town. But however this may be, the county court seem to have rejected the evidence upon the ground that the facts offered to be proved had no tendency to show that the purpose for which the money was raised was illegal; and in ;this view we think there was no error. The act of 1862, General Statutes, p. 118, § 1, empowers towns, among other purposes, to raise money, “for the purpose of defraying the expense and amount of bounties to such volunteers, which bounties may have been paid to such volunteers by private subscription or -from private means.”

The fact that the selectmen had not actually paid the notes that they gave to the volunteers that they had enlisted, does not exclude the case from the scope and object of the statute. A promissory note for many purposes is regarded as a payment; but whether so or not, the selectmen had incurred a personal liability by giving their notes ; and raising money to cancel that liability was within the spirit and scope of the power given by the statute. Besides, if the money was raised to pay those notes, held by such volunteers, then it was raised to pay to the volunteers, and came within the letter of the statute. It is urged that as the statute authorizes the raising of money to be paid to those who have volunteered or may hereafter volunteer, “from said town,” the purpose was not within the statute, because some of the volunteers did not reside in that town; and therefore did not volunteer from that town. But if they enlisted to the credit of the town upon its quota, they enlisted from that town within the meaning of the statute. It was not necessary they should reside in that town in order to be credited upon the quota of that town.

The remaining question is as to the validity of the list on which the tax was assessed. The objections are to the validity of the whole list of the town for the year in question.

It is objected that the form of the oath certified and signed by the listers, is the form required by the statute in the year of the general appraisal of real estate, instead of that given for other years. G. S., p. 522, §§ 85, 36. We have not been furnished with a copy of the certificate signed by the listers ánd appended to the list, but it seems to be conceded that the fact is as assumed by the plaintiff’s counsel in this objection. The certificate given in the statute, for the year of general appraisal, contains a statement that the appraisal of the real estate was made, “ at such sums as we would appraise the same in payment of a just debt due from a solvent debtor,” and which is omitted in the form given in the statute for the intermediate years. The insertion of this clause in this certificate can not vitiate it, as it is the duty of listers in the intermediate years, so far as they have occasion to appraise real estate, to follow the same rule of appraisal as that prescribed for the year of general appraisal. The only other difference between the two forms is, that the form for the years between the years of general appraisal, contains the words, '■'•and have appraised all additions, and made all deductions, required by law.” This is omitted in the other form. This omission in the- certificate in question, we are of opinion, is not sufficient to render the list void. The general statement that they have appraised all the real estate, necessarily includes the statement as to additions and deductions. The deductions referred to in the statute are where buildings have been destroyed by fire or other accident, since the last general appraisal. By the act of 1855 there was but one form of oath or certificate given, which was the same as is annexed to this list; but by the act of 1856, which act is still in force, the form for the years intervening the general appraisals was changed as already stated.

It is insisted the list is void for the reason that. there is no certificate of a justice of the peace upon the list, that the oath certified and signed by the listers, was administered to them. It was decided in Éeed v. Chandler, 32 Vt. 285, that a grand list, not certified or sworn to, was incomplete and invalid. In that case there was no certificate of the listers, except a certificate of the abstract of the list, such as is required to be returned to the legislature; and it appeared affirmatively by the testimony of one of the listers, that neither that certificate nor the list, was sworn to by the listers. To that decision we are disposed to adhere. In the case at bar, one of the listers testified that the listers did make oath before a justice of the peace to the certificate which they signed and attached to the list. There does not appear to have been any evidence to contradict this. If they in fact made oath to the truth of the certificate, that gave it all the sanction which the law requires, unless it is necessary to the validity of the list, that the fact that the oath was administered should be evidenced by the certificate of the magistrate annexed to the certificate of the listers. The act of 1855 does not in terms so provide, and it is doubtful whether it does by legal construction. That act, so far as relates to this question, is the same as the provision in the General Statutes, except the provision in the act of 1856 already referred to, changing the form of the certificate for the years other than the years of the general appraisal. That act of 1856 was not intended to change the law except as to the form of such certificate. But whether the statute contemplates the annexing of the magistrate’s certificate to that of the listers or not, we think the omission of it is not such a departure as to invalidate the list, when in fact the oath was administered. But it appears by the case that the county court ruled without reference to the testimony of the lister, that it was sworn to, that the list was good on the face of it. Thus the question arises whether, upon the face of the list with the certificate of the listers signed by them, it is to be presumed that the list was sworn to as stated in the certificate. The listers are public officers ; it was their legal duty to swear to the truth of the certificate ; and they state over their own signatures that they did so, as the certificate is in the form of an oath. Considering the presumption that exists in favor of the doings of public officers, the intendment is that the listers made oath to the certificate as they therein state.

' It was further objected, “that it does not appear upon said list that the same was completed and lodged in the town clerk’s office on or before the 18th day of May, 1863.” The answer to this is that the statute does not require that this should appear upon the list.

It appears that, “the plaintiff offered to prove that there was no record in the town clerk’s office showing that the lands in Lemington were appraised by the listers in 1860, as required by law.” This hardly comes up to an offer to show that no such appraisal was made in 1860, or that there never was any proper evidence of such appraisal. But assuming such was the tendency of the evidence offered, it was properly rejected. If the listers in 1860, the year for the general appraisal, omitted to perform that duty, the town was not obliged to be without a grand list during the next succeeding five years. In such case it would be the duty of the listers to make a list from their own appraisal. It is provided by G-eneral Statutes, page 520, § 24, “when the listers of any town shall at the regular appraisal of real estate, by accident, mistake, or otherwise, neglect to appraise any real estate, it shall be the duty of the listers of any such town for any succeeding year, to appraise the real estate so omitted, and set the same to the owner in the list of such town.” Probably the leading object of this section was to give the listers of succeeding years power to supply defects in the regular appraisal arising from partial omissions, but it is broad enough to cover an entire omission to make an appraisal.

This disposes of all the objections insisted on, and the judgment of the county court is affirmed.