Osgood v. Clark

26 N.H. 307 | Superior Court of New Hampshire | 1853

Woods, J.

By the act of July 6, 1849, Pamphlet Laws, ch. 852, § 1, and ch. 116, § 1 of the Compiled Statutes, it is provided that “ upon petition of ten or more legal voters, inhabitants of any village situated in any town, or in two or more towns in this State, the selectmen of such town or towns shall fix, by suitable boundaries, a village precinct, for the purposes hereinafter mentioned, including therein the said village, and such parts of said town or towns adjacent thereto as may seem to them convenient, and make a record thereof.” On the 10th day of September, 1849, the selectmen of Hopkinton, in pursuance of a petition for that purpose, established a precinct; and on the 29th of September, in pursuance of the provisions of this act, the precinct was fully organized, embracing a village in Hopkinton.

On the 27th of October, 1849, at a meeting of the voters called for that purpose, by formalities described in the case, a vote was taken to re-consider the vote by which the act of July 6, 1849, had been adopted. And on the 27th of August, 1850, in pursuance of a petition, the selectmen altered the bounds assigned for the precinct first established, so as to exclude a part of the village, the whole village having been embraced in the first.

It will not be necessary to determine what was the legal effect of the vote of October 27,1849, or whether the power given by the statute to the selectmen, upon petition, “ to fix by suitable boundaries a village precinct,” involves the power of altering them after the precinct has been organized by a meeting of its inhabitants, and an adoption by them of the act.

If such power existed, it was not in this case exerted in conformity with the provisions of the statute, which requires the entire village to be included in the precinct. No discretion seems to be vested in the selectmen, which can justify them in establishing a precinct embracing a part only of the village, either by the words of the statute or its policy.

The proceedings taken to establish the new precinct having been ineffectual, the tax of $>200, mentioned in the case, was illegally assessed; and the defendants, in assessing and collecting the sum assessed upon the plaintiff, are, consequently, liable to him in damages.

It is said that the plaintiff has mistaken his remedy, and should have brought an action of trespass vi et artnis, instead of the action for consequential damages.

In Gibson v. Fisk, 8 N. H. Rep. 404, which was an action on the case for driving the plaintiff’s sheep, found in the defendant’s close, to an unreasonable distance, and to the injury of the plaintiff, a similar objection was taken to the form of the action. But the court held, that although by the abuse of his power and authority to drive the sheep out of his own close, he had made himself a trespasser, and that an action of trespass might have been maintained, yet it was a well settled principle, that in cases where trespass or trover will lie at the election of the party, he may waive both the trespass and the conversion, and recover in a special action on the case.

In Walker v. Cochran, 8 N. H. Rep. 166, which was trespass against selectmen for an illegal seizure, the form of the remedy was objected to, and the court held that the plaintiff had an election to treat the wrongful assessment, which arose in that case from illegally dooming the plaintiff, as the injury, and declare in case, or to treat the seizure of the property as the ground of action and bring trespass.

In Perry v. Buss, 15 N. H. Rep. 222, it was held that a like election existed where the party was not liable to any tax, or when the selectmen had no authority to make one.

So far as appears by th‘e ease, this form of action may be fully justified by the rule laid down in either of the eases cited.

The gravamen stated is the assessment and collection of an illegal tax. The assessment of such a tax is clearly in no view a trespass, nor unless by collection, something more is intended than receiving the money voluntarily tendered or paid, is that a trespass. But the plaintiff has a right to allege and prove a compulsory collection of it as an injury consequential upon the illegal assessment, and waiving the trespass, if ii exists, recover his damages in the mild form of the present action. And upon this ground we hold that it is well brought.

Judgment for the plaintiff..