Smith v. Bradley

| Superior Court of New Hampshire | Jan 15, 1849

Gilchrist, C. J.

The act of July 7, 1837, N. H. Laws, vol. 2, ch. 331, provides that the selectmen of each town shall annually, in their inventories and assessments of taxes, cause the names to be entered and property duly assessed, of all persons whom they believe to have their residence in such town on the first day of April of each year, and to issue their warrant for the collection of the same ; and that such taxes shall be good, unless the person so assessed shall tender to the selectmen an oath, in writing, sworn and subscribed before some magistrate, that he had taken up a residence elsewhere, &c.

The court in this ease instructed the jury that if the defendants, when they assessed the tax, believed the residence of the plaintiff to be in Rumney on the first day of April, 1842, they rightfully taxed him there, although his residence was in fact at that time in New-Hampton; and that, as he had not furnished the statement and certificate required by the law of 1837, the tax was lawfully collected, and the action could not be maintained.

These instructions, almost in the very words of the statute, seem to leave no space for any objection, and the exception which was taken must be overruled.

Another exception is, that the defendants, the selectmen of Rumney, did not show that they had seasonably caused the invoice and assessment to be recorded by the town-clerk, or that they had left with him a copy seasonably for that purpose.

The statute of July 7, 1827, N. H. Laws 553, provides for the annual assessment of taxes to be made by the selectmen upon the polls and estates of the inhabitants, according to principles and in the manner pointed out in that chapter. It then (sec. 11) requires the selectmen to “ make lists of all such assessments under their hands, and to commit the same unto the collector or collectors of their i*espective towns, with a warrant under their hands and seal, in due form of law.” The statute then directs what the lists shall contain. It then provides that the selectmen shall cause a fair entry and record to be made of all invoices by them taken, &c. “And the selectmen shall also have their assessments recorded by the town-clerk, &c., or shall leave an attested copy with him seasonably for that purpose, and a copy of the invoice from which the assessment was made shall also be recorded, or left with the town-clerk, in the manner aforesaid, that the inhabitants and others rated may inspect the same.”

The statute is a long one, and embraces many particulars that may be regarded as preliminary to the act of making the assessment; such as settling the parties to whom estate is to be taxed; the places where particular kinds of property shall be rated ; the mode of ascertaining the existence and amount of property capable of being concealed, &c. It then requires the selectmen to agsess the polls and estates their just and equal proportion, to make a list of such assessments, and commit it, with their warrant, to the collector. The subsequent proceedings, such as recording the invoice and assessment in their own book, and causing them to be recorded by the town-clerk, are for the purpose of preserving the memory and making, a publication of their doings. The omission of any or all of them cannot vitiate the assessment, or vacate the warrant which has already gone forth for the collection of the taxes. These things they are required to do, and to do seasonably, that people may inspect the records when made, and not that there may be a valid assessment, or that an assessment already made and committed for collection may remain good. The subsequent omission of the selectmen cannot, we apprehend, have any such effect to defeat their prior acts. The exception must, therefore, be disallowed, and there must be

Judgment on the verdict-.