48 N.H. 180 | N.H. | 1868
The record shows a legal assessment. "In assessing such taxes the selectmen may assess a sum not exceeding five per cent, more than the amount of such tax, to answer any abatements that may be made, which shall be paid into the town treasury for the use of the town.” Rev. Stats, ch. 43, sec. 4. The addition of three per cent, did not exhaust the power of the selectmen to add two per cent, more at any time before the completion of the assessment. If the selectmen, in determining the amount, were not acting under the foregoing statute, they must either have been grossly transcending their powers and acting in flagrant violation of law, or, in the case of the State, county, town and road taxes, have committed an unaccountable clerical error,„ and, in the case of the school tax, have made a very singular arithmetical blunder. But we think that, instead of presuming that the selectmen were proceeding illegally, the natural inference in the mind of any one familiar with the statute must be that the selectmen were acting under the authority expressly given them by lavv to do the very thing which they have done; see Shackford v. Newington, 46 N. H. 415, pp. 420, 422. The presumption in the present case is hardly as violent as that which was made in Gordon v. Norris, 29 N. H. 198; see, also, Jaquith v. Putney, Sullivan, June Term, 1868; Blake v. Sturtevant, 12 N. H. 567, p. 572; 15 N. H. 222; 42 N. H. pp. 357-9; 17 N. H. 587, p. 592.
According to Alvord v. Collin, 20 Pick. 418, it would seem that if the selectmen had added more than five per cent, to the school tax, but less than five per cent, upon all the taxes in the aggregate, the assessment would still be valid. It is unnecessary, however, to consider here the correctness of this position, for the plaintiff has in fact been assessed on each tax for a smaller sum than the selectmen were legally authorized to assess against her.
In the view that has been taken it does not become material to inquire whether Drew’s testimony was properly admitted.
A failure to make a written agreement as to the compensation of a collector does not invalidate his appointment. If the legislature, in enacting section 5 of chapter 36, Rev. Stats., had entertained a different intention, they would hardly have omitted to add to section 5 a provision similar in substance to the one contained in the next preceding section, viz. : "And in default thereof the office shall become vacant.” The addition of this clause to section 4, and the omission of any similar clause in section 5, is significant of the legislative intention.
Judgment on the verdict.
