21 N.H. 550 | Superior Court of New Hampshire | 1850
The questions raised by this case require the examination of a subject, which has always been watched with much jealousy. The power of taxation is one of the highest attributes of sovereignty, and affects the rights of the citizen as intimately as any other. It is also one upon which the existence of a government in a great measure depends; and while courts feel themselves bound to give no countenance to frivolous objections on the part of the tax-payer, and to render all proper aid in carrying out the laws, they are also called upon to see that the rights of the citizen are not improperly invaded, nor his property taken without provision of law.
The annual town-meeting of Raymond, in 1844, was attempted to be called by that provision of the statute which enacts, that “ the selectmen may address their warrant to the inhabitants of the town, qualified to vote in town affairs; in which case they shall post up an attested copy of such warrant at the place of meeting, and a like copy at one other public place in the town, fifteen days before the day of meeting.” Rev. Stat. ch. 32, § 4. Two attested copies are to be posted up: one at the place of meeting, and one at some other public place in town. The evident object of the law is, to have the notices of the meeting made as public as circumstances reasonably require, that all who are interested in the subject-matters contained in the warrant may have the privilege of attending the meeting, if they see fit. The clause of the statute seems also to presuppose that the place of the meeting shall be a public one; for, in fixing upon the other place where the copy is to be posted, it speaks of some “ other public place.”
In the case before us, it appears that one of the copies was posted upon the inside of the door of the meeting-house where the meeting was to be held ; that the door was then locked, and kept locked till the day of the meeting. Literally speaking, the statute was complied with by this manner of posting the copy, because the copy of the warrant was posted up at the place of meeting; but so far as the spirit of the act is to be regarded, or the inhabitants of the town were concerned, there might just as well have been no copy whatever posted up. To recognize such
But theje is still another objection to the warning of this meeting. The copies of the warrant were not posted up in due season. The law requires that they be put up fifteen days before the day of meeting. Rev. Stat. ch. 32, § 4. And the day on which they are posted up is not to be reckoned in the computation ; for “ when time is to be reckoned from any day, date, act done, or the time of any act done, either by force of law, or by virtue of any contract hereafter made, such day, date, or the day when such act is done, shall not be included in such computation.” Rev. Stat. ch. 1, § 25. These copies were posted up on the Monday, two weeks before the Tuesday on which the meeting was to be held. Excluding the Monday, the day on which they were posted up, there remain but fourteen days before the day of meeting. In the case of the Graf
It is said that the action cannot be maintained, because the plaintiff’s only remedy was by application for an abatement of his taxes; that the Revised Statutes have enlarged the powers of the selectmen and court in this respect, and given an adequate remedy in all cases. A careful comparison, however, of the act of 1827, with the provisions of the Revised Statutes
It is further contended, that inasmuch as the warrant contained assessments for the State, county, and school taxes, in addition to the sum raised for town purposes, it can be regarded as several warrants, some of which are legal, and some illegal; and this view of the subject is attempted to be sustained upon the authority of Brackett v. Whidden, 3 N. H. Rep. 17. It also goes upon the assumption that the two selectmen of 1843 could hold over during 1844, and consequently assess those taxes that did not require any special action of the town. In Brackett v. Whidden it is said, that “ a warrant authorizing a collector to collect several taxes, separately assessed, may be considered as several warrants to collect the several taxes respectively,” so that the warrant may be good for some purposes, and bad as to others; and this is the doctrine relied upon by the defendants to sustain them in this position. But it is further said in the same case, that although an arrest may be justified by virtue of the legal warrant, if nothing more be done, yet, if the person arrested be detained a moment by virtue of the illegal warrant, it is a trespass. This decision, then, so far from sustaining the views of the defendants, is a direct authority for the plaintiff upon the facts presented in this case, for here the plaintiff was detained in custody until he paid the whole tax assessed for all purposes, and the costs of his arrest. We think it clear that the defendants fail upon this point.
Another position taken by the defendant is, that the plaintiff has misconceived his form of action, and that he should have brought case and not trespass.
Prior to the passage of the Revised Statutes in 1842, this question came under the consideration of the Court several times, and might then be considered as settled. It was held that the party had his option to treat the wrongful assessment as the injury, and declare in case, or to treat the seizure of his property or the arrest of his person as the ground of action, and declare in
But, it is contended that the Revised Statutes have changed the form of the remedy in actions of this kind, and that case is the only legal form to be adopted. The statute provides, that “ an action on the case and no other shall be commenced against any sheriff, deputy-sheriff, coroner, or other officer, for any damages arising from any default or misconduct in his office.” Rev. Stat. ch. 180, § 12. Probably the occasion of this statute arose out of the hardships that frequently befell sheriffs and their deputies, on account of actions of debt being brought against them, for escapes on final process, and other defaults where the action of debt was held to lie. By the common law, if a sheriff or other officer, undertaking to execute final process by arrest, should suffer an escape, or should neglect to make an arrest when the defendant was within his precinct, he was liable to an action of debt to the full amount of the original judgment, and was not permitted, as in the action of case, to go into any evidence of the situation and circumstances of the defendant in mitigation of damages: 2 W. Bl. 1048; 2 Term Rep. 126; 2 Johns. 454; 6 Johns. 271; 2 Chit. Rep. 454.
The fact that none but executive officers are specified in the section, would seem to indicate the object which the legislature had in view; that it was to leave open to the investigation of a jury all actions brought against such officers for any official default or misconduct. It could not be intended to shield them from illegal acts, which should be committed by them without process, or with void process. Thus in the case of Hills v. Hoyt,
But the defendants further contend, that if they are liable at all in this action, it can be only for nominal damages, as the plaintiff has paid only his fair proportion of the taxes of that year. It may be true, that he has paid no more than his due proportion of the State, county, and school taxes, and so far the argument might perhaps hold good. But he has also, to gain his liberty, paid several dollars that were illegally assessed upon him, in pursuance of an illegal and void vote of the town. It cannot be held that where taxes are from their foundation illegal, that any payment by others can justify the arrest and imprisonment of an individual, because he declines to pay his fair proportion of such taxes. That is not the doctrine of Cavis v. Robertson, 9 N. H. Rep. 524, which is cited by the defendants. In that case, the defect consisted in the tax having been collected by the defendant, who was chosen collector and gave bond, but who had not taken the oath of office as prescribed by statute. He was collector de facto, but not de jure, and the
If we should decide that the two selectmen of 1843 could hold over and legally act during 1844, the defendants might, perhaps, on trial before a jury, give in evidence the amount of the State, county, and school taxes, in reduction of damages. The, case, however, does not come before us upon ];he finding of a jury, but upon an agreed state of facts; and upon the further 'agreement, that judgment shall be entered for the plaintiff for the sum’of $16.41 and interest, or for nominal damages ; or for the defendants generally, according to the opinion of the Court upon the case. Holding that the action can be sustained, and that the defendants are liable for more than nominal damages, judgment must therefore be entered for the plaintiff, according to the agreement, for the sum of $16.41 and interest. Henry v. Sargeant & a. 13 N. H. Rep. 342.
Judgment for the plaintiff.