20 N.H. 107 | Superior Court of New Hampshire | 1849
It appears in this case that the warrant for calling the town-meeting at which the tax was voted, was not seasonably served or posted up, and that, therefore, the assessment was void, and the distress of the plaintiffs’ goods unlawful. The only question now for consideration is, upon the amount of damages to which the plaintiffs are entitled for the unlawful seizure and sale of their property, and the conversion of the proceeds to the payment of the tax, and consequential expenses. And this question has become limited to the single inquiry,
It may well be conceded, upon the authority of several cases, that where property is seized under color of legal process, by one actually exercising an office which entitles him to execute it, and the proceeds of the seizure are formally applied to reduce or extinguish a debt which the owner of the property is at all events bound to pay, such facts may be shown in mitigation of damages, although the officer, by irregularity in his acts, has forfeited the protection of the law. Prescott v. Wright, 7 Mass. 20; Blake v. Johnson, 1 N. H. 91; Cavis v. Robertson, 9 N. H. 524.
But it was said, in the last named of these cases, that the defendant must “show a tax legally granted;” and that seems to us to comprehend the sum of all that can be said upon the subject. If there were, in the present case, no legally existing tax, it matters not on what ground the tax is declared void. It may be one ground or another. It may be void because the warrant was not posted up at the proper time, or because it has been raised for an unconstitutional purpose. But it is enough that it is void. "We cannot draw a line which shall include taxes that are void for one class of causes, and those that are void for another. The line would always be shifting with the circumstances of each case. It is, perhaps, of as much importance that taxes should be assessed in a legal manner as for legal objects, and as great mischiefs might possibly he shown to have resulted from deviations in the former as in the latter particular. However that may be, towns have no legal power to impose a tax upon their inhabitants, or others owning property liable to taxation by such towns, unless certain formalities be observed, designed to give sufficient notice to all entitled to participate in the-act, to enable them to be present, and object, if they see cause. This is an indispensable preliminary; and it is
It has been urged in argument that the object for which the tax was assessed was one to which the plaintiffs were legally bound to contribute, and for which a reassessment might still compel them to contribute, and that thus the case fell within the reason of the rule allowing a limitation of damages. But such an extension of the principle would give it a vagueness totally subversive of its precision and of its force. It would admit inquiry as to what might and what might not be a legal object of taxation, and whether, if legal, the town might at another time deem the object a necessary and expedient one. It would admit inquiry as to the liability of the party to be taxed at all at a future time, and if taxable, whether to the same extent as before. In short, we should be required to form opinions not so often upon the validity of actual proceedings, as upon contingencies which must in their nature baffle the utmost diligence to settle.
Ve are of opinion that this is not a case within the principle which has been pointed out, admitting the restriction . of damages ; but that judgment should be rendered for the full value of the property sold, as shown by the sum for which it was sold.
Judgment for the plaintiffs for $107.87.
