Baldwin, J.
This case presents two grounds to support the motion for a new trial:
1. That the charge was incorrect.
2. That the court; rejected proper evidence.
The first point depends merely on the due construction of the several statutes relating to the subject.
The statute entitled “ An act for the collection and payment of rates or taxes,”
The power given to the corporation in question to lay taxes, is by the twelfth section of the act entitled “ An act for appointing, regulating and encouraging schools,”(b) which enacts, “ That the inhabitants of any school district, qualified to vote in school society meet» [380]*380ings, shall have power to tax themselves, for the purpose of building, or otherwise procuring, a school-house for such district,” kc. By this section, the defendant claims that the school districts have the general powers of taxation for the object specified. The plaintiff contends that their powers are limited; for that by the expression to tax themselves, ex vi termini, non-residents are excluded; that they receive no benefit from the object of the tax; and are, in no instance, taxable by any community, except by power specially delegated.
It is conceded, that counties, towns, cities, and ecclesiastical societies, have all exercised the power of tax.-ing the property of non-residents; and yet the authority by which they do so is expressed in very different terms.
The power to tax counties is given to assistants and justices in these words: “ To tax the inhabitants.”(a) The same power is given to the county court, &c. for other objects, in these words : “ To grant and levy a tax, upon each town, according to the lists of estates,”(b), That given to school societies is, “ To grant rates.”(c) Selectmen have power, in one instance, “ to tax the inhabitants according to the list ;”(d) in another, “ to levy a tax on the inhabitants.”(e) The power of towns is in-ferrible from their power to appoint a collector when they shall have “ granted a tax to be levied and collected of themselves.”(f)
Thus, it appears, that the words used in granting to the several corporations the power of taxation, are not, in any two instances, the same. Yet, I presume, it was never conceived that the legislature intended to introduce different rules, varying according to the strict letter of the expression, to wit, that a power “ to tax the inhabitants,,” or “ to tax themselves,” was confined, strictly, to [381]*381the polls, or that the power to tax according to the lists cf estatea, excluded the polls. It is apparent that the legislature, by these various expressions, intended the same thing — the general power of taxation; and such, in all the cases specified, has been the immemorial construction.
It is also worthy of remark, that the power of school societies to tax for building school-houses, is given in these words: “To grant rates;” the most general and comprehensive expression that could be used ; and there can be no reason assigned, why school societies should tax by a rule including non-residents, and that school districts must tax for the same object, by a rule excluding them.
It is, however, contended, that the power given to towns by a late statute “ to tax themselves upon the lists of their polls, and ratable estate ” for repairing highways, did not give the power to tax non-residents, because by a subsequent statute that power is expressly given. This additional statute does not, in my opinion, enlarge the power of towns; by the general law, they were authorized to do the same; yet, as taxation for repairs of highways was permitted in lieu of personal services, to which non-residents were net liable, to remove all doubt this explanatory statute was made, not to extend, but to confirm, their power.
From the analogy of our system, I have no doubt that the general law would have enabled ecclesiastical societies, in all cases, to include the property of non-residents in their taxes, had not particular statutes, for reasons therein expressed, regulated the appropriation of those taxes arising on such property. This exception tends to prove the general rule. It also shows that such property is not exempt from taxation; and that without such provision it must be taxed in the society where it is situated.
It is evidently the policy of our law that all the au-[382]*382tliorized expenses of local communities, shall be borne by a uniform rule of taxation, on all the polls and rata- . . ble estate within them; on the fair principle, that such eXpcnc;itul.es are generally beneficial to the property of non-residents as well as to the inhabitants. And I conceive, that the exception provided in the statute, of “ another rule for particular cases,” is answered by the special and peculiar powers given to commissioners of sewers, proprietors of common fields, &c.
I am therefore clearly of opinion, that the power given to school districts by the statute in question, is the general power to tax upon the “ general list of polls and ratable estate,” within the district including the ratable estate of non-residents.
2. The second point depends on the relevancy of the evidence offered.
It is not in this case pretended that property was offered, shown, or tendered to the collector, whereon he might levy to satisfy his warrant. On the contrary, it appears that the plaintiff objected to pay the tax, or to yield obedience to the warrant, on the ground that the tax was illegal, and that no levy could be legally made.
It is conceded, that collectors of taxes have the powers, and must proceed generally in the same manner to collect, as officers having executions. They are bound to take property in preference to the body, if tendered ; they are bound to take property if tendered, even after a levy on the person.
The statute which regulates the levy of executions and warrants, was made in pursuance of a fundamental principle of our law, that personal liberty should not be unnecessarily restrained.
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Baldwin, J.
This case presents two grounds to support the motion for a new trial:
1. That the charge was incorrect.
2. That the court; rejected proper evidence.
The first point depends merely on the due construction of the several statutes relating to the subject.
The statute entitled “ An act for the collection and payment of rates or taxes,”
The power given to the corporation in question to lay taxes, is by the twelfth section of the act entitled “ An act for appointing, regulating and encouraging schools,”(b) which enacts, “ That the inhabitants of any school district, qualified to vote in school society meet» [380]*380ings, shall have power to tax themselves, for the purpose of building, or otherwise procuring, a school-house for such district,” kc. By this section, the defendant claims that the school districts have the general powers of taxation for the object specified. The plaintiff contends that their powers are limited; for that by the expression to tax themselves, ex vi termini, non-residents are excluded; that they receive no benefit from the object of the tax; and are, in no instance, taxable by any community, except by power specially delegated.
It is conceded, that counties, towns, cities, and ecclesiastical societies, have all exercised the power of tax.-ing the property of non-residents; and yet the authority by which they do so is expressed in very different terms.
The power to tax counties is given to assistants and justices in these words: “ To tax the inhabitants.”(a) The same power is given to the county court, &c. for other objects, in these words : “ To grant and levy a tax, upon each town, according to the lists of estates,”(b), That given to school societies is, “ To grant rates.”(c) Selectmen have power, in one instance, “ to tax the inhabitants according to the list ;”(d) in another, “ to levy a tax on the inhabitants.”(e) The power of towns is in-ferrible from their power to appoint a collector when they shall have “ granted a tax to be levied and collected of themselves.”(f)
Thus, it appears, that the words used in granting to the several corporations the power of taxation, are not, in any two instances, the same. Yet, I presume, it was never conceived that the legislature intended to introduce different rules, varying according to the strict letter of the expression, to wit, that a power “ to tax the inhabitants,,” or “ to tax themselves,” was confined, strictly, to [381]*381the polls, or that the power to tax according to the lists cf estatea, excluded the polls. It is apparent that the legislature, by these various expressions, intended the same thing — the general power of taxation; and such, in all the cases specified, has been the immemorial construction.
It is also worthy of remark, that the power of school societies to tax for building school-houses, is given in these words: “To grant rates;” the most general and comprehensive expression that could be used ; and there can be no reason assigned, why school societies should tax by a rule including non-residents, and that school districts must tax for the same object, by a rule excluding them.
It is, however, contended, that the power given to towns by a late statute “ to tax themselves upon the lists of their polls, and ratable estate ” for repairing highways, did not give the power to tax non-residents, because by a subsequent statute that power is expressly given. This additional statute does not, in my opinion, enlarge the power of towns; by the general law, they were authorized to do the same; yet, as taxation for repairs of highways was permitted in lieu of personal services, to which non-residents were net liable, to remove all doubt this explanatory statute was made, not to extend, but to confirm, their power.
From the analogy of our system, I have no doubt that the general law would have enabled ecclesiastical societies, in all cases, to include the property of non-residents in their taxes, had not particular statutes, for reasons therein expressed, regulated the appropriation of those taxes arising on such property. This exception tends to prove the general rule. It also shows that such property is not exempt from taxation; and that without such provision it must be taxed in the society where it is situated.
It is evidently the policy of our law that all the au-[382]*382tliorized expenses of local communities, shall be borne by a uniform rule of taxation, on all the polls and rata- . . ble estate within them; on the fair principle, that such eXpcnc;itul.es are generally beneficial to the property of non-residents as well as to the inhabitants. And I conceive, that the exception provided in the statute, of “ another rule for particular cases,” is answered by the special and peculiar powers given to commissioners of sewers, proprietors of common fields, &c.
I am therefore clearly of opinion, that the power given to school districts by the statute in question, is the general power to tax upon the “ general list of polls and ratable estate,” within the district including the ratable estate of non-residents.
2. The second point depends on the relevancy of the evidence offered.
It is not in this case pretended that property was offered, shown, or tendered to the collector, whereon he might levy to satisfy his warrant. On the contrary, it appears that the plaintiff objected to pay the tax, or to yield obedience to the warrant, on the ground that the tax was illegal, and that no levy could be legally made.
It is conceded, that collectors of taxes have the powers, and must proceed generally in the same manner to collect, as officers having executions. They are bound to take property in preference to the body, if tendered ; they are bound to take property if tendered, even after a levy on the person.
The statute which regulates the levy of executions and warrants, was made in pursuance of a fundamental principle of our law, that personal liberty should not be unnecessarily restrained. But if the debtor, for whose benefit the rule exists, neglects to offer property, or refuses to turn it out when demanded, declaring, at the same time, that the proceedings are illegal, he waives the privilege the law has given him, and the officer is excusable if he levies on the body. - In this view of the sub[383]*383ject, the evidence offered was irrelevant, and, of course, ought to have been rejected.
I am of opinion that there is no cause for a new trial on either ground.
In this opinion the other judges severally concurred.
New trial not to be granted.
Tit. 135. c. 1.