38 Mass. 75 | Mass. | 1839
delivered the opinion of the Court. Assumpsit to recover back money alleged to have been illegally assessed upon the plaintiff as a school district tax. The case comes before the Court upon exceptions to the decisions and
It was objected that the school district meeting, held April 11, 1836, was called by Thomas Spaulding, as the prudentia. committee, and that this was irregular because he was chosen at a meeting on June 13, 1835, called under a warrant issued by the selectmen, which did not recite that they had been applied to by members of the district to call such meeting.
It did appear from evidence aliunde, that they had been applied to ; but the Court think it a sufficient answer to the objection, that Spaulding was the prudential committee man de facto, and that the regularity of the notice for the meeting, at which he was chosen, is not open upon this inquiry.
It was excepted, that it does not appear by the record, that Spaulding was chosen a committee man. The answer to this, and we think it satisfactory, is, that there were two records o this meeting made by the proper officer, and each of equavalidity. They are not contradictory ; but in some particulars the one contains entries that the other does not. In one of the records, which is testified to be an original equally with the other, it does appear that Spaulding was chosen to this office.
The next exception was, that at a meeting held in April, 1836, Lamb was duly chosen as clerk, but was not qualified, the justices of peace who were present having refused to administer the oath. But in fact Lamb did not act as clerk at that meeting, but Whiting, the previous clerk, continued to act. But it is objected that Whiting was not qualified, because another had been chosen, because he had removed his residence beyond the limits of the district, and because he was chosen at a meeting irregularly called, the preceding year. The last objection has been already substantially answered. In regard to his having removed out of the district, the case of Barre v. Greenwich, 1 Pick. 129, is much relied on. We think there is a manifest distinction in the two cases. The Revised Statutes, c. 23, § 27, provide that the district shall choose a clerk, to be sworn, &c., and who shall hold his office
It was also objected, that the assessors, who assessed the tax, were not chosen at a town meeting warned fourteen days before the meeting. Were this a valid objection, it is not supported by the proof. This is supposed to. result from comparing the date of the return with the time of the meeting. But the date of the return is not conclusive of the time of service, and it does not appear that the warrant was not served fourteen days before the meeting.
Another exception was, that at the town meeting in 1835, it was voted, that each school district should choose their own prudential committee. It is objected that there was no article in the warrant to authorize this vote. It appears by the case,, that this was the annual meeting, and there was an article in the warrant, ct to choose all necessary town officers,” and “ to choose all necessary committees.” This article in the warrant was sufficient, especially at the annual meeting, held by law, for the purpose of choosing officers. An article to choose all officers and all committees, is sufficient to warrant a vote, providing for the choice of an officer, in a mode provided by statute. To consider whether they will choose a particular officer, where two modes of doing it are authorized by law, is in effect to consider how they will choose him.
The next exception is, that Hadley the collector was not duly sworn, it being put against his name, “ sworn,” without stating what oath he took. But this is not a default for which the district is liable; he was an officer of the town, not theirs, and whether duly sworn or not is immaterial to them.
It was further objected, that the assessors intentionally omitted to tax Legate, one of the inhabitants of the district, because he was very poor, and they thought would soon come upon the town for assistance, though he was not then a pauper. If this was done through error of judgment or any error and
Another exception was taken, that the assessment was made by two only of the three assessors. It appears by the case, that the other assessor received notice and was requested to act with them, but refused to do so. Where a body or board of officers is constituted by law to perform a trust for the public, or to execute a power or perform a duty prescribed by law, it is not necessary that all should concur in the act done. The act of the majority is the act of the body. And where all have due notipe of the time and place of meeting, in the manner prescribed by law, if so prescribed, or by the rules and regulations of the body itself, if there be any, otherwise if reasonable notice is given> and no practice or unfair means are used to prevent all from attending and participating in the proceeding, it is no objection that all the members do not attend, if there be a quorum. In the present case, all three having had notice and an opportunity to act, the act of two is sufficient.
The defendant offered to prove that the district had one sufficient schoolhouse, but the evidence was rejected. We know of no law which prevents a school district, when their schoolhouse is in their opinion too small, or ruinous, or when by a change of districts, a schoolhouse, though within the limits of the district, is in an inconvenient situation, or when from any other cause it is unfit for the purposes for which a schoolhouse is intended, to vote to' build another, before the former is actually taken down. The fact, therefore, if proved, would not show the tax illegal, and was rightly rejected.
The last exception is, that the tax was not assessed within thirty days. The statute is directory in this respect and not restrictive ; and they are not prevented from assessing aftei the expiration of thirty days. Pond v. Negus, 3 Mass. R. 230.
Exceptions overruled, and judgment of the Court of Common Pleas on the verdict for defendants, affirmed.
