Sherwin v. Bugbee

16 Vt. 439 | Vt. | 1845

The opinion of the court was delivered by

Hebard, J.

In this case two questions have been presented. The first is, whether the defendant can show by parol the time of the day at which the district meeting was warned to be holden,— which is omitted in the record of the warning. The other is, whether the defendant can show by parol, that all the legal voters in the district were present at the meeting, and voted on the question of raising the tax, for payment of which the oxen were taken.

The first question depends mainly upon the question whether the warning is to be regarded as a part of tbe proceedings, which are required, by law, to be recorded. This must depend mainly upon its connection with the business, that is done under it. It is not made necessary by any express provision of the statute, as in the case of warnings for town meetings. The statute was undoubtedly intended to provide for such a record of the proceedings of the district, as would render it unnecessary to have any thing supplied by parol, in order to determine the legality of the proceedings. The statute requires notice to be given by a warning; and all the business to be transacted must be set forth in the warning. Unless the warning is recorded, there is no way of ascertaining whether the proceedings were legal; — and this, undoubtedly, should be the state and condition of the records. They should furnish all the means for testing the validity of the proceedings. With this view, it would seem to follow that no omission in the record of the warning could be supplied by parol.

The main question was settled by this court at their last session in this county. It was then considered that the time of day, at which the meeting was to be held, was an essential part of the notice, and that it could not be dispensed with.

It is next insisted, that the offer to prove that all the legal voters of the district were together at the meeting and voted should have been allowed. But this is substantially the same question, in principle, that we have just disposed of. The objection is to the mode of proof. Any fact, that should be a matter of record, should be proved by the record. That all the voters in the district were present is not necessary, in order to make the proceedings legal; nor can such fact be gathered from the record. To allow parol proof of that fact, as a substitute for a fact that should appear from the record, would be substituting parol proof for the record.

It is to be noticed, that all the powers, which the district have, for raising money and collecting taxes, are given by the provisions of the statute, and that the district can only exercise these powers by following the provisions of the statute. And it is also to be noticed, that the powers, with which the district is thus vested, are to affect non-residents, and others, who are not voters. To permit the district to exercise this authority, without complying with the provisions of the statute, would be sanctioning the collection of taxes, without the consent of those who are taxed, find against law.

The case of The King v. Theodorick, 8 East 543, has been cited as an authority by the defendant. But that case and the one now before the court cease to appear ‘parallel, when we examine the provisions of the charters of the respective bodies. In the case from East the charter required no special summons to the electors, for the. purpose of holdingjthe election. In the case of school districts the statute does require a special summons or notice, to be given to the voters, and specifies the length of the notice and the manner of giving it. And in the case cited, Lord Ellenborough says, “If a summons of any kind had been specially required by the charter, a compliance therewith would have been strictly necessary, .in order to have rendered the election valid.” We therefore think this an authority which favors, rather than opposes, the ruling of the county court.

The subject of imposing taxes has always been scrutinized and narrowly watched; and a strict and rigid compliance with the law has been required, to make the taxes legal. The case of an election has usually been construed more liberally, — the powers exercised depriving no individual of his property, or of any legal right. But in the collection of taxes it is otherwise. Money is thereby taken from the pockets of .individuals, who have no right to participate in the proceedings, and who, perhaps, have no interest in the design and purpose, for which the tax is raised; and, while they may be compelled to part with their money without their consent, they at least have a right to insist that it shall be according to law.

The judgment of the county court is affirmed.