Scammon v. Scammon

28 N.H. 419 | Superior Court of New Hampshire | 1854

Bell, J.

The firs! objection to the tax under which the defendants justify, is that the warrant for the town-meeting was not posted in a public place. It is returned to have been posted at the Baptist meeting-house. It is said such a meeting-house is not necessarily a public place, and this is true. But we understand it to have been settled here that houses of public worship are ordinarily and prima facie to be regarded as public places. In Tidd v. Smith, 3 N. H. Rep. 181, Richardson, C. J., says," the general understanding of the community on a question of this nature is entitled to much respect, and it is believed that this understanding has viewed as public places houses of public worship, inns, and perhaps, in some places, shops where goods are retailed.”

There are but few towns in the State where there are to be found any places of a more public character than meeting-houses ; and our impression is that so extensively has the idea prevailed that meeting-houses are to be regarded as public places, that it has hardly ever been deemed necessary to add to a return that a notice had been posted at a meeting-house, the further fact that it was a public place, as perhaps it is most judicious to do; and it might now be attended with mischievous consequences to hold all such returns defective.

Where a warrant, then, is returned to have been posted at a house of public worship, it will be prima facie taken to be a public place, and the party who objects that from the character of the town or of the house, it is not properly to be so considered, is bound to show the grounds of his objection. In the case of Gibson v. Bailey, 9 N. H. Rep. 175, it was held that the return must show that the warrant was posted in a public place, but the ease there was that of a dwelling-house, and we think the case of houses of public worship may v/ell form an exception to that general rule.

2. It is next objected that the record of the town-meeting does not show that the selectmen werea elected by ballot or by major vote. Rev. Stat. ch. 34, § 2. As the statute expressly requires the election of these officers to be by ballot and by major vote, and an election otherwise made is merely void, we think this defect fatal. When the authority of public officers is questioned, in a suit to which they are themselves parties, they áre bound to prove that every requisite of the law has been complied with. Brewster v. Hyde, 7 N. H. Rep. 206; Blake v. Sturtevant, 12 N. H. Rep. 567; Tucker v. Aiken, 7 N. H. Rep. 131. As the town clerk may be permitted to amend his record according to the fact, (Bishop v. Cone, 3 N. H. Rep. 513; Gibson v. Bailey, 9 N. H. Rep. 176,) it was better that an amendment should be required, than that any presumption should be adopted to support the deficient record.

3. It is further objected that the record does not show shat the selectmen took the oath of office prescribed by law. This objection seems to us without substantial foundation, since “ took the oath of office,” seems to us to import the oath of office prescribed by law. No other oath can be called the oath of office, the official oath. This ease seems to us clearly distinguishable from Cardigan v. Page, 6 N. H. Rep. 182, where the record v/as “ sworn into office,” and Gibson v. Bailey, 9 N. H. Rep. 170, where the record was " qualified by F. C., Esq.,” and Ainsworth v. Dean, 1 Foster’s Rep. 400, where there was a similar record. The first of these eases seems to us to go to the very verge of the law. It would not have been a forced or unnatural construction to have held that the words “ sworn into office,” imported the same thing as w took the oath of office as by law prescribed.”

4. It is urged that the tax was assessed by the selectmen without the concurrence of the assessors, who, it is insisted, are necessarily required to assess a legal tax. For this idea, we think, there is not the slightest color. The power of assessing taxes is, in terms, conferred upon the selectmen, without referring to the assessors. Rev. Stat. ch. 43, § 3, &c. It is optional with towns to choose assessors to form a joint board with the selectmen, in the assessment of taxes, (Rev. Stat. ch. 34, § 3,) and in a great proportion of the towns in the State no assessors are usually chosen. Hayes v. Hanson, 12 N. H.Rep. 284. That the assessment is valid, if made by the selectmen alone, is' apparent from 12 N. H. Rep. 284 ; Cardigan v. Page, 6 N. H. Rep. 182; Brackett v. Whidden, 3 N. H. Rep. 17; Gove v. Lovering, 3 N. H. Rep. 292; Smith v. Burley, 9 N. H. Rep. 423; Chase v. Sparhawk, 2 Foster’s Rep. 134.

5. The fifth exception is, that the selectmen were bound to set down the omitted property specifically in the tax-list, and assess it fourfold, and had no right to assess any thing as doomage merely. This objection seems to us unfounded in fact. The only ground for assuming that the assessment was upon doomage is, that the amount is set down in the column under the head “ doomage.” If that were all that appeared there might be force in the suggestion. But here the true character of the assessment is distinctly stated. Wilfully omitted $800, showing exactly what they claimed to assess as omitted. The selectmen were not bound to tax fourfold the whole property they believed to be omitted, but might Jimit their penal assessment to a less sum, if they thought proper. Rev. Stat. ch. 41, § 6. Upon the case of Willard v. Wetherbee, 4 N. H. Rep. 128, it might be well contended that if, upon the face of the invoice, the sum assessed appeared as doomage, the selectmen might be permitted to show that they were also warranted in making the assessment under the section relative to fraudulent concealments. If it is said in that case the doings of the selectmen are legal, it is wholly immaterial whether they be so by accident or design.

6. The sixth objection is founded on the preceding, and falls with it.

7. The seventh exception is that a copy of the invoice and assessment was not left with the town clerk, to be recorded before July 1. Section 6 of chapter 43 of the Revised Statutes provides that the selectmen shall record the invoice and assessment, and leave them, or a copy of them, with the town clerk before July 1. This objection is founded on the decision in Cardigan v. Page, 6 N. H. Rep. 183, where in an action involving the title of land under a collector’s deed, it was held that the tax was invalid, if this provision was not complied with. It is assumed that it is in the nature of a condition precedent, essential to the validity of the whole proceedings. But we cannot so regard it in the cases of the taxes generally, however it may be regarded in the cases of sales for non-resident taxes. Any tax may be collected before the first of July. The power of the collector is understood to be complete, upon the receipt of his list and warrant, and he may proceed to collect any tax as soon as he can give the legal notices for that purpose, and with short notice, where he has reason to believe such person is about to remove from town. Rev. Stat. ch. 45, § 2. And in our larger towns the taxes assessed upon a large class of transient persons must be promptly collected, or they are generally lost. Certain steps must be taken by the express requirements of the statutes before the first of July, (Rev. Stat. ch. 46, § 2,) in order to collect taxes on non-residents. And it seems to us that the validity of a tax cannot depend upon the punctual performance of this duty by the selectmen, after the warrants for the collection of the tax have passed out of their hands. We think, then, that the provision of the statute, on this subject, must be deemed merely directory. The selectmen may be responsible, if they neglect their duty in this respect, but the validity of the tax cannot be affected.

8. The eighth exception is that there was no legal authority shown to assess a State and county tax. The State tax being granted by a public law, of which courts ex officio take notice, no other proof of that was required. Cardigan v. Page, 6 N. H. Rep. 191. The assessment of a State tax would still be valid, though no warrant was issued by the State treasurer, because the amount of the tax and the proportion of their town are fixed by public laws, though the selectmen could not be charged, perhaps, with neglect of duty, if they did not assess a tax for which they had no warrant.

But it is otherwise with the county tax. 6 N. H. Rep. 191. The authority to assess that tax must be proved. In this case it was not proved. The parties made an agreement as to a substitute for that proof, but the defendant has been unable to comply with it. The court cannot extend this agreement beyond its natural import, nor exercise their judgment as to what proof may reasonably be substituted. The plaintiff, as to that, has, as he claims, a right to the verdict of a jury.

9. The next, which is probably the principal question of the case, is whether the note, as it is called, of the plaintiff to Mrs. Gordon for $10,000, is evidence that he is paying interest for that or any less sum. That note is in the words

“ Due Sophia Gordon [the said widow] ten thousand dollars, to be paid for her support, as needed, and if no part is needed, no part is to be paid.

Stephen Scammon.”

This is but a special agreement, and by no means a promissory note. It is not a contract to pay ten thousand dollars, constituting the signer the debtor of that sum, nor Mrs. Gordon, his creditor, for that amount, though the first clause seems designed to carry that impression. It is merely an agreement to pay to Mrs. Gordon, for her support, as she should need it, to the amount of ten thousand dollars, if she needed it. If she did not need any part of it, no part was to be paid. It was not, therefore, evidence of any debt. Still less was it evidence either of the payment of interest or of any liability to pay it. There can be no Interest, properly speaking, unless there is an indebtedness for principal. No mention of interest is made in the writing itself. It is limited to the payment of $10,000, without interest. The court below, therefore, properly declined to give the instruction to the jury, which was requested by the plaintiff’s counsel.

10. The charge of the court below that the amount of property received by the plaintiff from the estate of his wife’s father, and the amount paid to the widow, for her interest in that estate, might be considered by them, in connection with other evidence, as bearing upon the question whether the plaintiff had more money at interest than he paid interest for in 1849, seems to us to have been correct and proper. Proof that a man had, or admitted he had, a certain amount of property, is evidence having a tendency to show that he now has it, of greater or less weight, in proportion to the greater or less distance from the time in question, and in proportion as it is or is not supported by other and more direct proof. Proof that a witness’ character was bad several years ago,< is admitted as casting a suspicion upon his present title to credit. A state of things once proved to exist, is taken to continue, unless something be shown to throw doubt upon the conclusion. It is true, as urged by the plaintiff, that a man of large property may have little liable to taxation in the town in which he lives. But the general principle is, that for most kinds of personal property, for money on hand, or at interest, for example, a man is taxable where he resides. And circumstantial evidence, tending to show the possession of such property, equally tends to show him taxable for it in the town where he has his home.

11. The remaining objection, that the court below charged the jury that the defendants would be justified in taxing the plaintiff for $3,000, if they could show $750 wilfully omitted in his invoice, seems to have no foundation. It is well understood that the invoice and assessments are made in a very brief form, and it would not be judicious to criticise the language when the substance is found. If a suitable space had been found in the ruled blanks used for the invoice and assessments, this matter might, perhaps, have formed a column by itself, instead of being placed under doomage, but it is quite as evident, as it is, that it is not a case of doomage. So, if space had allowed, the selectmen might have said,!i We add to Mr. Scammon’s invoice for $800, money on handor at interest, wilfully omitted by him in giving in his invoice, liable to be taxed fourfold, equal to $3,200, the sum of $3,000.” In that case, the true character of their acts would be apparent, but, we think, it is equally plain what was meant by the brief entry they have made-Can they, then, show a right to tax the plaintiff for the sum of $3,000 ? They show it, if they show a sum wilfully omitted, which, being quadrupled, would equal that sum. We cannot but see that to tax a-’ sum four times as large, is the readiest way to ascertain the amount of a fourfold tax.

The second and eighth exceptions being sustained, there must be a new trial.

Verdict set aside.