Alger v. Curry

40 Vt. 437

• Court: Supreme Court of Vermont
• Decided: January 15, 1868
• Status: Published

Opinion

The opinion of the court was delivered by

Wilson, J.

This cause came into this court on a general demurrer to the defendant’s plea of justification. It is insisted by the plaintiff’s counsel that the plea is bad, because it does not allege that the town had a quota to fill; nor that there were any men in Hinesburgh liable to military duty, or subject to draft; nor that there was a rebellion, nor that it was the duty of every town to furnish a quota. It is obvious that it was not necessary for the defendant to allege or set forth in his plea, all the circumstances aud particulars which rendered it necessary in the judgment of the legal voters of Hinesburgh, to raise the tax in question. Section 95, of chapter 15 of the General Statutes, provides that any town, at a town meeting legally warned and held, may grant and vote such sums of money as they shall judge necessary for the maintenance and support of the poor ; for laying out and repairing highways ; for building and repairing bridges ; for the prosecution and defence of their common rights and interests, and for all necessary and incidental charges within the town. The act of 1862 provides that towns may grant and vote such sums of money as they may judge best, to be paid to those who have volunteered, or may hereafter volunteer from said town, to serve in the volunteer or militia regiments or companies of this State in the service of the United States. The act of 1863 provides, among other things, that towns may grant and vote such sums of money as they may jndgfe best, to .be paid to drafted men, who enter the service of the United States. These several acts state in general terms the purposes or objects for which towns, in their discretion, are authorized to grant and vote money. Section 3, of chapter 15 of the General Statutes, provides that all town meetings shall be warned by the selectmen, who shall in their notifica-' tions of such meeting, set forth the business to be done and the subjects to be considered at the meeting. The law does not require that the business to be done, or the subjects to be considered, should he set forth in the warning with greater particularity than is expressed in the statute which authorizes the town to vote money for the purpose named in the warning; all that is necessary in this respect is that the warning of the meeting to raise the money, should set forth in general terms the purposes or objects for which the money is to be raised, with such reasonable certainty as will notify all interested of the subject matter of the proposed vote or action of the town, and the' time and place of meeting. "We think this has always been regarded as a sufficient setting forth in the warning of the business to be done and the subjects to be considered, to justify the raising of money for any pnrpose named in the warning and authorized by law. It would not, I think, be gravely insisted that it would be necessary for the selectmen, in warning a meeting to see if the town would raise money to repair roads, or for the support of the poor, to insert in the warning an article to see if the town would consider whether there was a road that should be repaired, or a pauper who needed relief. But the selectmen and other inhabitants of the town might’ well understand the consideration of the article which expressed the purpose for which it was proposed to raise the money, namely, for repairing roads, or for the support of the poor, would necessarily involve the inquiry and allow them to consider the question whether there was a road that should be repaired, or a poor person who needed relief, as well as to consider the present necessity of granting the money. The vote, raising the money, may be regarded as the finding, by the town, of such a state of faets as in the judgment of its legal voters, show, prima facie, at least, the present necessity of the tax. In applying these remarks to the present case, it'is evident that, in the warning of the meeting to raise money to pay bounties to soldiers, an article to see if the town would consider whether “ there was a rebellion,” would not be necessary to give the right to consider the subject, and the consequent duty of the town, nor essential to the validity of the tax. Nor is it necessary to the validity of the Vote of a town, that it should state the particular facts which show the present necessity of the town for the use of the money. In Blodgett v. Holbrook, 39 Vt. 336, it was held that all that is necessary in respect to the manner iu which the purpose of a town in raising money, shall be expressed in the vote, is, that the vote shall indicate in general terms the purpose or object for which the money is raised, and if that purpose or object is such as comes within the scope of the powers of the town, it is sufficient. The law declares the purposes for which towns, in their discretion, may grant and vote money, and in some of those cases, the statute authorizes each town to decide for itself, as to the present necessity of the town for the use of the money, and as to its duty in respect to granting the tax. It therefore seems plain that, under the warning and vote which indicate in general terms the purpose for which the money was to be raised, and by the vote is raised, the law will presume that the town found all those particular facts upon which its legal voters acted, and in the exercise of their judgment and discretion under the statute, decided as to the present necessity of the town for the use of the money, and as to such facts the collector should not be required to allege or prove them. To require the collector to go back of a legal warning and vote, and show that the town, in the exercise of its discretion, acted wisely in its judgment in respect to the present necessity of the town for the use of the money, would, I think, be inconsistent with the letter and spirit of the statutes which allow towns the exercise of discretion in respect to the necessity of granting money for the purposes named in those statutes. It is clear, we think, that the allegations of the plea, in respect to the warning and vote of the meeting, are sufficient when they contain, in general terms, all the statute requires should be indicated by such warning and vote. In the case of Clemons v. Lewis, 36 Vt. 673, it was decided that if a plea of justification by a collector under a rate-bill and warrant to collect a tax, voted by the town, sets forth the purpose for which the tax was voted in general terms merely, and that be one for which the town may raise money, it is not necessary that he should allege all the circumstances and particulars to show that, in the particular case, the exercise of the4power was rightful; that will be presumed,unless the contrary appear. It was, therefore, not necessary for the defendant to allege in his plea, or to prove that there was a rebellion” It is objected by the plaintiff, that the plea does not allege that the town of Ilinesburgh had a quota to fill, but this objection should not prevail. The presumption is, that the town had a quota, but if it were necessary that the plea contain any allegation as to the quota of said town, the allegation in the plea, that it was the lawful duty of every town to furnish a certain quota of men under the call, is sufficient on general demurrer.

2. The next objection urged by the plaintiff is, that the warning does not justify the action and vote of the town under it. It appears that so much of the warning as related to taxation was, “ to ascertain whether the town would vote a tax on the grand list, for the purpose of paying bounties to soldiers, and paying its indebtedness.” The town had power to raise money for those purposes, and we think they were sufficiently expressed in the warning. The town, at said meeting, voted to raise a tax, for the purposes mentioned in said warning, on the grand list of said town, of two hundred cents on the dollar. This vote, upon its face, expressly refers to the warning for the purposes for which .the money was raised; it expressly states that the money was raised for the purposes mentioned in the warning; it sufficiently expresses that the money was raised for the purpose of paying bounties to soldiers, and paying the indebtedness of the town, and it does not appear that the money was raised for any other purpose. The town, in the passage of the vote, did just what the law and the warning authorized it to do.

3. It is objected that there is no article in the warning authorizing the vote making the tax payable to the selectmen, but this objection, we think, is not well founded. It is true that town treasurers are the general depositaries of money belonging to the towns, and the usual course is for the' collectors to pay over the taxes to them. But there is no statute requiring taxes, when collected, to be paid by the collector to the treasurer, and good reasons might exist why the money might not properly be paid to him, the sufficiency of which would be for the town, or its officers, to determine. In Clemons v. Lewis, 36 Vt. 673, it was held that a direction, in a warrant, to the collector to pay over the tax, when collected, to the selectmen, instead of the treasurer, will not make it invalid. In that case it did not appear that the town, by vote, directed the tax to be paid to the selectmen ; but, in this case, the town, by express vote, directed the tax to be paid to them, and that vote relating merely to the.person or persons with whom the collector should deposit the money, when collected. required no article in the warning to justify its passage. The warrant authorized the defendant to use compulsory measures to enforce collection of the tax, and it was not a matter of concern to the plaintiff, and could not affect the validity of the tax, whether the collector, when the tax was collected, paid it to the treasurer or selectmen.

4. It is claimed by the plaintiff that there was no law giving towns the right to vote‘taxes for the purposes named in the warning; that the act of 1862, applies only to such volunteers as serve in the volunteer or militia regiments, or companies of this state, in the service of the Uuited States, and to payment of deb's contracted for paying bounties to such volunteers ; that the act of 1863 applies only to drafted men ; that it does not appear that any men were dratted from Ilinesburgh, and that it does not appear, by the defendant’s plea, that the volunteers to whom this money was to be paid, belonged to such regiments or companies. This objection eanuot avail the plaintiff. We have before observed that it sufficiently appear by the plea, that the town had power to vote money, for the purposes named in the warning and vote. It does not appear, by the plea, that the soldiers to whom the money was to be paid, were not in the regimeuts of this state. The legal presumption is, they were in such regiments, or companies. The question is not, whether the town raised money, and directed it paid over for an unlawful purpose. The purposes for which the money was voted were lawful, therefore the purpose for which the town may ultimately apply the money can not affect the validity of the tax,-but is a matter between the town and its officers. 36 Yt. 673.

5. It is said by the plaintiff’s counsel, that the warrant under which the defendant attempts to justify, is illegal and void, beceause it is signed by Noble L. Partch, a justice of the peace, and directs-the money, when collected, to be paid into his own hands, in his official capacity as one of the selectmen. The statute provides that the selectmen shall apply to a justice fora warrant to collect the tax; and any justice to whom such application shall be made, whether liable to such tax or not, is authorized and re.quired to issue such warrant. The issuing of the warrant, by the justice, was a ministerial act merely; he had no personal or private interest in the tax, but his interest, so far as the tax was payable to him, was merely official. This being his relation, it constitutes no ground of objection to the warrant.

G. It is insisted by the plaintiff that the plea is bad, because the property was posted to be sold at F. W. Baldwin’s barn — a place not alleged to be a public place, and was sold there. Whether Baldwin’s barn was or was not, at that time, a public place, cannot be determined on demurrer. The presumption is, that it was a public place at the time the property was posted. In Austin v. Soule, 86 Vt. 645, the court held that the words, public place, as used in the statute requiring goods levied upon and sold on an execution, to be advertised and sold at some public place,, mean a place where the advertisement would be likely to attract general attention, so that its contents might reasonably be expected to become' a matter of public notoriety ; that a barn, dwelling house, shed, or even a rock or tree, if answering this condition, may be a public place within the meaning of the statute. The same construction should be given to the words “ public place ” which occur in the statute relating to the posting of goods destrained for payment of faxes. It is the duty of the officer who has levied upon goods by virtue of an execution, or distrained goods for the payment of taxes, to select some public place at which he may advertise and sell the property, and in making such selection he is required to act fairly. The main object or purpose to be sought in sales of this character is to secure for the sale such degree of publicity as will be likely to insure good faith in the sale, and to protect the rights of all interested in the property against collusion or fraud. The statute should receive a liberal construction when.no want of good faith is imputed to the officer. But in this case, we think the allegations of the plea show a substantial, compliance with the statute in respect to the place at which the property was advertised and sold, and they are sufficient on general demurrer. The language of the statute is, “ the constable, after posting such .distress for sale, for the space of six days in some public place in the town in which it was taken, shall sell the same at public auction to the highest bidder.” The plea alleges, among other things, that the defendant, at said Hinesburgh, at a public place in said town of Hinesburgh, posted said goods and chattels for sale at public auction, on the 3d day of March, 1865, at one o’clock in the afternoon, at F. W. Baldwin’s barn in said town; and at the time and place appointed, the defendant proceeded to sell and did .sell at public auction the property so advertised. The plea in substance alleges that the property was posted at a public place in Hinesburgh, to be sold at public auction. The allegations of the plea are perfectly consistent with the idea that the property was posted at Baldwin’s barn and that his barn was a public place.

7. It is urged by the plaintiff that the requisite time was not given after distraining the property, before posting it for sale, and that the time after posting and before the sale, was less than the law requires. We think the proceedings of the officer are open to no valid exception in respect to the time of keeping the property, nor in respect to the time of posting and selling it. The property was seized on the 21st of February, it was advertised on the 25th of February, to be sold on the 3d day of March, and sold on that day, making ten days from the time of the seizure to the time of sale, and six days from the time of posting to the day on which it was sold, which is the full time required by law. The only remaining question relates to the constitutionality of the law under which the tax was voted. We have no occasion in this case to enter upon an examination of this question, because the same question was before the court at the last General Term, and the decision in that case will be announced in due time. We are of opinion that the defendant’s plea is sufficient. The plaintiff may replead under the general rule as to costs.

The judgment of the county court is reversed, pro forma, and the case is remanded.