Town of Rochester v. Town of Chester

| Superior Court of New Hampshire | Feb 15, 1826

Green, J.^*

The decision of the first question in this ease depends on the construction of that part of our statute of January 1st, 1796, which prescribes the fourth mode of gaining a settlement, and which provides, that u any person of “ twenty-one years of age and upwards, having real estate of “ the value of $150, or personal estate of the value oi ⅞250, “ in the town or district, where he dwells and has his home, u and shall, for the term of four years, pay all taxes duly as-u sessed on his poll and the estate aforesaid, shall thereby “ gain a settlement in such town or district.”

Our statute, in relation to settlements, was probably taken from the English statutes on the same subject, and appears to be in substance the same, except in what relates to illegitimate children, and gaining settlements by taxation. In the latter case, the English statute of William Iff. is thus expressed : — “ If any person, who shall come to inhabit in any “ town or parish, shall be charged with, and pay his share Si towards the public taxes or levies of the said town or pa-£i rish, ho shall be adjudged to have a legal settlement in the “ same,” »

The decisions on this law, as might be supposed, have been, that there must have been a taxing or charging by the town, and a payment by the pauper.

The material difference between the two laws, as relates to the poipt in question, is, that our statute does not, i n express terms, require the pauper to be assessed, but only says, éí shall pay all taxes duly assessed on his poll and the “ estate aforesaid.”

The only inference to affect this case, which can be drawn from the variance in the two laws, is, that if the Ei>e': statutes were consulted in forming our own, the omis^i* the latter, of expressly requiring the person to be U.:.< must have been intentional, and designed to render it unnecessary as a requisite in gaining a settlement.

But we must principally rely, for a construction in this case, on what may be gathered from the statute itself, and the decisions in analogous cases, in other states.

In adverting to the different parts of the statute, we find the eighth mode of acquiring a settlement expressed ag follows :

“ Any person of the age of twenty-one years, who shall “ hereafter reside in any town or district within this state, “ and being taxed for his poll for the term of seven years, “ shall pay all taxes legally assessed on his poll and estate, “ during the said term, shall be an inhabitant of said town 4t or district.”

Had the framers of this act intended, that by the words, 4‘ pay all taxes duly assessed on his poll and estate,” which are used in the paragraph, on which this question arises, should be understood a taxing of the pauper by the town, and his paying the taxes, it is quite unaccountable, why they should have taken the precaution to use the words 5! being taxed” in the latter paragraph ; unless they intended a distinction in the two cases, it is extremely difficult to account tor their not making use of the same words in the latter as in the former paragraph, it may also be added, that the actual taxing of the pauper being explicitly required in one instance to effect a settlement, the omission of such express requirement in another instance, in the same statute necessarily leads to the conclusion, that in the latter case, that requisite was intended to be dispensed with ; and it may further be said, that if taxing is indispensable' in gaining a settlement, under the part of the statute referred to, such taxing must, to effect the purpose intended, necessarily continue the four years ; and in case the selectmen should, from any other cause than a fraudulent design, fail of taxing the fourth year, there is reason to doubt, whether the individual would gain a settlement, although he had paid the taxes the three preceding years.

This question seems to be settled in Massachusetts, in a case analogous to the present. (The Inhabitants of Wrentham vs. The Inhabitants of Attleborough, 5 Mass. Rep. 430.) There the question was, whether the pauper had gained a settlement in Mansfield, under the part of their statute, which provides, that “ Any person, being a citizen of this of “ any of the United States, and of the age of twenty-one “ years, who shall hereafter reside in any town or district 54 within this state, for the space of ten years together, and “ pay all state, county, town or district taxes, duly assessed “ on such person’s poll or estate for any five years within “ the said time, shall thereby gain a settlement in such town “ or district.”

It appeared, that the pauper, for more than ten years to« gether, after the year 1794, being of the age of twenty-one years, and a citizen of the United States, resided in Mansfield, and was duly assessed for five years during said term, in all the state and town taxes assessed during that time upon the inhabitants of Mansfield, and paid all the taxes so assessed upon him ; and during the said ten years he was assessed one year only for the county tax, and paid the same. and the other inhabitants of Mansfield were assessed for a county tax nine years during said ten years.

The objection against the pauper’s having acquired a settlement in Mansfield was, that he was not assessed in that town for the county tax for any five years within the ten years of his residence there, but only for one year.

The Chief Justice, in delivering the opinion of the court, remarks, “ It is the intention of the legislature, if a citizen “ of full age shall live in any town for ten successive years, and during half that period has taxable property to con- “ tribute to the charges of the town, in paying his proportion “ of the several taxes imposed on the inhabitants, he shall u have a settlement there and this opinion is not predicated on the idea of fraud in the assessors, in not assessing the pauper for the county tax ; for in the same opinion it is afterwards said, that whether the omission was by accident or design, the result would be the same.

It has been urged, by the plaintiff’s counsel, and with much ability, that the whole law, on the subject of settlements, manifestly shews, that it was never intended, that an individual should acquire a settlement in a town or parish, without, their consent, either express or implied ; and in recurring to the English statutes, and consulting our own from the first organization of the state, there is much reason to believe such to have been the design of all the early statutes ; but admitting it to be so, we feel it incumbent on us to say, that the law, which embraces this case, has departed from that rule ; and our opinion is, that the instruction te the jury was correct.

The other objection, that the opinions of witnesses, as to the value of the property owned by the pauper, were rejected as evidence, although they were well acquainted with it, and had examined it for the purpose of ascertaining its value, and with a view to purchase, has also been considered ; and we think it cannot prevail.

The general rule is, that the opinion of witnesses is not evidence ; but there are, from necessity, exceptions to this rule ; and if the evidence offered was within any of the exceptions, then it was improperly rejected.

On questions of science and trade, or others of the same kind, persons of skill may, no doubt, be permitted to give their opinions i;i evidence ; because the jury, being wholly unacquainted with the particulars, or, which such opinions are founded, would be unable to draw any correct conclusion, from hearing them stated ; for instance, was a physician to state the particular medicine administered to a patient; from being unacquainted with the operation and effect of such medicine, the jury would be wholly incompetent to judge, whether such treatment would probably produce the death of the patient or not. So if a ship-builder should state to a jury of the country the condition of a vessel, they would be unable to judge, whether she would be sea-worthy or not. So should a meclianick describe to the jury a complicated machine, constructed of different materials, with which they were unacquainted, it would be impossible for them to judge, with any degree of accuracy, of its value ; and was a witness to describe a particular piece of cloth of foreign manufacture, this would afford a jury but little aid in judging of its value, they being ignorant of the cost of manufacturing, and of the price, at which such an article usually sold ; in these, and similar cases, it is from the opinion of persons skilled in the particular science or trade, •and dealing in the particular article, that satisfactory evidence can be obtained ; but when the necessity of admitting such evidence ceases, the exceptions to the general rule also cease.

In the case before us the witnesses were called to testify to the value of a small piece of land, and a hut upon it, in the town of Rochester. It was not pretended, that these witnesses had been in the habit of buying and selling such property in Rochester, or had any particular skill in judging of the value ; bat had such evidence been offered, it would, probably, have been rejected ; because the jury must be supposed competent to ascertain this without the aid of such evidence.

There is, perhaps, no species of property in the community, of the value of which a jury are better acquainted. than houses and lands ; most of them, from experience, know the value of every article, of which a house is con-i' > ictcd, and they also have knowledge of the local situation of all the towns in their county, and the general value of the real estate in them — they are usually drawn from every part of the county ; but if, in this instance, none of the jury were from the neighbourhood of Rochester, still by having the house, and the relative situation, and quality of the land, described by witnesses, they would, with the aid of their general knowledge of the town, he able, with sufficient accuracy, to judge of their value.

Should the evidence offered be adjudged admissible, the decision must extend to all cases, where the value of property is in question, and would destroy the rule itself, so far as it applies to cases of this description.

After the fullest examination, we entertain no doubt, that the evidence was properly rejected ; and there must be

Judgment on the verdict.

* Richardson, C. J., being an inhabitant of Chester, did not sit in the trial oT this case.