Ford v. Holden
39 N.H. 143
N.H.
1859
Check Treatment
Sawyer, J.

The provision of section 1, chapter 24, of the Revised Statutes, which defines the persons who are legal voters, is enacted in the words of the Constitution, art. 28, part 2, which declares that every male inhabitant *146of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request, shall have the right to vote. "What is meant by a person’s being excused from paying taxes, has never been determined, so far as I have been able to ascertain, by judicial interpretation of this clause of the Constitution, nor directly declared by enactment of the legislature. By the act of 1847, chap. 492, see. 2, which declares that no legal voter shall be deprived of his right to vote, by reason of his having requested that his taxes might be abated or remitted, or by reason of the abatement or remission, provided he shall, before he offers to vote, tender the payment of all taxes assessed against him during the year prior to his offer to vote, it would seem to be implied that the abatement or remission of the taxes by the local authorities, at the party’s request, is an excusing from payment, within the meaning of this provision of the Constitution. Such has undoubtedly been the general understanding, at least since 1827, when this provision first became a statutory enactment of the legislature. N. H. Laws (1830) 451. Down to that time the act of February 8, 1791, passed under the Constitution of 1783, and in the words of that Constitution, declai’ing that every male inhabitant, of twenty-one years of age and upwards, paying a poll-tax for himself, should have the right to vote, remained upon the statute-book unrepealed in terms, though probably annulled and superseded by the operation of the provisions of the present Constitution, adopted in 1792.

Assuming that such abatement or remission of the tax is to be regarded as an excusing from payment, within the meaning of the Constitution, it is clear that it cannot have the effect to annul the right to vote beyond the political year for which the tax abated was assessed, even in the absence of any statutory provision to that effect. The meaning of the constitutional provision cannot be held to *147be that by requesting an abatement of tbe taxes for a single year, or for any given number of years, and their abatement accordingly, the party is forever disfranchised. The obligation to pay the taxes assessed at the general taxation for the year, and the right to vote, are to be considered in this respect as correlative, and the denial of the right to be limited to the time for which the taxation was made. It can be limited to no other time, upon any satisfactory grounds. It would seem to be quite consistent and proper that the effect of the abatement-of taxes which are to be annually assessed, upon the right to vote under which the political power is annually exercised for raising the tax, should be thus limited to the year. If not so limited, it must be a perpetual disfranchisement. The act of 1847 recognizes this limitation, by requiring the payment only of the taxes assessed during the year preceding the election, in order to restore the right to vote.

If, then, the abatement of the taxes in this case for the years preceding 1856 had the effect to deprive the plaintiff of his right of suffrage during those years respectively, it in no way affected his right at the November election in 1856. There was no ground, either connected with his right of suffrage at that election, or independent of it, upon which the payment of the taxes assessed in the years 1852-1854, 'inclusive, could be required of him, either by the town, their collector, or the selectmen in the capacity of their agents or as supervisors of the check-list and judges of the qualifications of voters in town. The taxes had been abated, and the effect of the abatement was to extinguish them. There was no longer any claim or liability on account of them, nor any way to enforce them. The defendant, either alone or in conjunction with his associates, had no authority to demand them, or to make their payment a condition upon which the insertion of the plaintiff’s name in the check-list was to depend. Upon every view that can be taken of the case *148the plaintiff should have his remedy to recover back the money. He did not part with it voluntarily. It was not, indeed, extorted from him literally by duress of person or property, but it was by withholding from him his right. It is suggested by the counsel for the defendant that he had no right to have his name placed upon the list, with or without the payment of this money, inasmuch as the taxes for that year had been abated at his request, and had not been paid, and the payment of them, if made in accordance with the act of 1847, would not restore the right of which he was deprived by virtue of the constitutional provision. But if the right to vote cannot be said to have been withheld from him until he paid the money, he had the right to have the adjudication of the selectmen directly upon the question whether, in case his right to vote should be denied on the ground of the abatement of his taxes for 1856, his payment of them then would not restore the right, agreeably to the act. It is to be presumed that if the selectmen had declined to insert his name on the list solely on the ground that the taxes for 1856, abated at his request, had not been paid, he would have paid them, and thus placed himself in a position to demand of them an adjudication of that question. They waived this and all other grounds of objection to his right to vote, except only the non-payment of the taxes for the three preceding years. These being paid, they acknowledged and recognized his right to vote. The payment was equally compulsory, whether it was made to obtain a right which they — the judges of his qualifications for the time being, and, as such, having the power to exclude or admit — erroneously accorded to him, acknowledging it to be his on every other ground; or whether it was made to obtain a right given to him by the law, from which they could not legally debar him. They were public officers, acting in their official capacity. As such they declared the law for the time in reference to his qualifications as a *149voter. They withheld from him what they, as judges, having the power to exclude or admit, acknowledged to be his right on all other grounds, until he paid the money, which they had no right to require. It is immaterial, therefore, whether, with or without the payment of the tax of 1856, he would or not have been entitled to vote.

The money cannot be understood to have been received upon any consideration, or as the basis of an adjustment between two parties of their conflicting claims. The transaction cannot assume the character of a negotiation between two parties. It is the case of the exercise by the selectmen of their official power to obtain money from the plaintiff, which they honestly supposed they were entitled to demand as a condition precedent to their inserting his name upon the list, but to which by law neither they as selectmen nor the town were entitled, and the payment of which they had no authority to require, either in the capacity of agents of the town, or in the higher character of public officers, clothed with authority to decide upon the qualifications of their fellow-townsmen as voters.

It. would be strange, indeed, if the party from whom the money was thus extorted could have no remedy at law to recover it back. It was paid into the hands of the defendant, and upon receiving it he held it as money received by him to the plaintiff’s use. His liability to account for it as money so received, is in no way affected by the fact that he afterwards delivered it over to the town treasurer as money belonging to the town. .

If any previous demand for the money was necessary to the maintenance of the action, it could be made by the authorized agent of the plaintiff' as well as by the party himself. By placing his claim in the hands of an attorney for collection, he constituted the attorney his agent to make the demand. In Whittier v. Johnson, 38 N. H. 160, cited on this point by the defendant’s counsel, it was held that a demand made by the attorney by letter, when *150the attorney’s place of business was at tbe distance of several miles from the residence of tbe party on whom the demand was made, and in a different county, was insufficient. Here tbe demand must be understood to have been made by tbe attorney in person, if that is necessary, or in such other form as the attorney of tbe party is authorized to adopt.

Exceptions overruled.