Hayes v. Hanson

12 N.H. 284 | Superior Court of New Hampshire | 1841

Gilchrist, J.

No exception is taken to the acts of the defendant as collector of taxes ; and if liable at all, he is so only as an assessor.

The provisions of the statutes on the duties of the selectmen and assessors, are, on their face, somewhat inconsistent with each other, and can only be reconciled and explained by a consideration of the peculiar duties which the law intended should be performed by the two boards. The duty of the assessors is only to form part of a board for the assessment of taxes, and to act only upon that subject. With the invoice they have nothing to do. That they can, in no case, act as a board independent of the selectmen, we think will appear from an examination of the various provisions on this subject.

By statute, the selectmen have the ordering and managing of all the prudential affairs of the town. N. H. Laws 453, (Ed. of 1830.) The statute also provides that the town “ may choose assessors by ballot, who, together with the selectmen, shall constitute a joint board for the assessment of taxes, and all questions arising at such board shall be decided by the major vote of the joint members thereof.” Ibid. 454. The invoice of the property of the inhabitants is to be taken by the selectmen. Ibid. 553. The selectmen and assessors are required seasonably, in every year, to assess the polls and estates, &c. Ibid. 557. And the selectmen or assessors may assess not over five per cent., to answer any abatement, &c. Ibid. The selectmen are to make lists of the assessments, and commit them to the collector, and to cause invoices and assessments to be recorded. Ibid. And for neglect of their duties, they are liable in the manner prescribed by statute. Ibid. 558. They are also empowered to abate taxes, &c. Ibid. 559.

The assessors constitute a part of the board for the assessment of taxes; and, according to the words of the statute, either they or the selectmen may assess five per cent, to answer any abatements.

The first section of the act of January 4th, 1833, (ch. 108,) provides, that the taxes shall be assessed on all the polls and ratable estate which shall be appraised by the selectmen or assessors. The second section provides, that the selectmen and assessors shall set down in their invoices the following classes of ratable estate, &c., and upon the invoice thus made the selectmen or assessors shall assess all public taxes. The third section provides, that the selectmen or assessors, who shall make their appraisal, shall, before entering upon the duties of their office, take and subscribe the following oath, <fce.

The leading principle established by the statute is, that the selectmen and assessors shall constitute a joint board for the assessment of taxes. When the selectmen are mentioned in reference to this subject, they are referred to as assessors, and not as acting in any other capacity. When the statute speaks of powers exercised by the selectmen or assessors, nothing more is meant than the board who may act upon the subject of the assessment of taxes. We are not to understand that where there are assessors, either the board of assessors or the board of selectmen may assess fice per cent, to answer any abatements, or do any other thing in relation to the assessment, because they constitute a joint board for this purpose. The statute evidently did not intend that one board should have a negative on the other; because, if that were the case, nothing would be done, should they differ in opinion. Of course, when we speak of assessors, we refer only to those who are legally qualified to act as such.

Was, then, the tax legally assessed? If it were, the defendant is not liable.

The selectmen took the invoice and made an appraisal in the month of April. On the 28th day of May the defendant took the oath as an assessor, and as an appraiser of the property; and, on the same day, the invoice, appraisal, and assessment made by the selectmen were examined by the whole board, but no alterations were made, except to correct some errors in the casting. The invoice and appraisal are, by law, to be made in the month of April; but this duty was performed by the selectmen alone, neither of the assessors taking any part therein. At that time there were no assessors competent to act, for they had not taken the oath of office. The invoice and appraisal, therefore, were made by a competent board. It is provided by law, that when there shall be a vacancy in any town office, or when there shall be a want of any town officer, a meeting may be called for the purpose, and an officer chosen. Blit here no occasion existed for the action of the town, because there was no vacancy in the office of assessor, nor was there any want of any such officer. There was merely a neglect, on the part of the officers duly chosen, to take the oath of office. This neglect might subject them to a penalty, but could not invalidate the doings of the selectmen. What, then, were the selectmen to do ? No question could have arisen, if no assessors had been chosen. As they were chosen, but not qualified, and as the selectmen constituted a majority of the whole board, they alone were competent to act. Their doings, then, were legal. The assessors, it is true, did not make an appraisal, and did not assess the taxes. They merely assented to what had been done by the selectmen. They assented to a legal act, which was valid without their assent. Can that make the defendant a trespasser ? We think not. If the invoice and appraisal had been made by a minority of the whole, and had merely received the assent of the others, a question might have arisen, whether an assessment, founded upon such an appraisal, would have been legal. The duties of the board who assess taxes are judicial, to a certain extent. They cannot appoint a stranger to make an appraisal, and then render it their own, by adoption, because the law intends that they should exercise their own judgments.

Suppose the selectmen, having legally assessed a tax, had committed it, with a warrant, to the collector, and the defendant had, without authority, signed the warrant, as one of the assessors, not having been elected to that office. Can an order, by an unauthorized person to an officer, to do an act which he has been legally authorized to perform, by competent authority, make the person who thus gives the order a trespasser? We cannot see on what principle it would have that effect. This is all, on the plaintiffs own ground, that the defendant has done. We are of opinion, therefore, that the tax was legally assessed, and that the defendant, by acting so far as he went, as an appraiser, and signing the warrant, did not make himself liable as a trespasser.

It is, however, further contended by the plaintiff, that the defendant is a trespasser for what he has done, because the oath was not filed and recorded in the office of the town clerk. But the statute does not require him so to do. It provides that it shall be done, but does not impose that duty upon any particular person. And it would not seem proper that he should do it. He has not, by law, the custody of the certificate of the oath, but it belongs to the person who administers it, and to him the duty of seeing it filed and recorded properly belongs. His neglect cannot prejudice the assessor, by causing him to be a trespasser, nor the public, by making the assessment and collection of the tax illegal. The object of this provision is merely directory, and is neither a condition precedent to the action of the officer, nor does it render his proceedings invalid, if the oath be not filed and recorded. Jackson vs. Young, 5 Cowen 269; Williams vs. Lunenburg, 21 Pick. 82; Sprague vs. Bailey, 19 Pick. 436. Even where the law requires that proceedings shall be filed and recorded, it deserves consideration whether such requisitions ought to be deemed conditions precedent, without which the act is void, or only directory to the officers in the performance of their duty, the omission of which might subject them to responsibility. There are many cases where an act is prescribed by law to be done, and record made thereof, and nevertheless, if left unrecorded, the act is valid. What requisitions are to be deemed conditions precedent, must depend on a sound construction of the nature and objects of each regulation, and of public convenience, and apparent legislative intention. Bank of the U. S. vs. Dandridge, 12 Wheat. 64, (6 Cond. R. 454 ;) Johnson vs. Dole, 3 N. H. Rep. 328.

It is a well settled rule, that in endeavoring to ascertain the meaning of a particular statute, or of a clause in a statute, all the laws on the same subject are to be construed together, and that the general legislation on the matter may be considered by the court. Holbrook vs. Holbrook, 1 Pick. 254; Commonwealth vs. Martin, 17 Mass. 362. All acts “ in pari materia'” are to he taken together, as if they were one law, and they are to be compared in the construction of statutes, because they are considered as framed upon one system, and having one object in view. Duck vs. Addington, 4 T. R. 447; Expande Drydon, 5 T. R. 417; Earl of Ailesbury vs. Patterson, Dougl. 30. And this principle we have followed in comparing with each other the provisions of different statutes relating to the assessment of taxes and the powers of assessors.

We are of opinion that the verdict for the plaintiff should be set aside, and that there should be

Judgment for the defendant.