Converse v. Porter

45 N.H. 385

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1864
• Status: Published

Opinion

Bellows, J.

The action is trespass against two of the selectmen of Lyme for taking the property of the plaintiff,. June 28, 1861. Defendants pleaded the general issue and also, a special- plea justifying the taking upon the ground that the property was seized and sold under a warrant for the collection of a- school house tax assessed upon the plaintiff, an inhabitant of a school district in Lyme, known as District No. 9, or District No. 9 and 16, or No. 9 and 16 united, by the defendants as selectmen of said Lyme; that, on the 25th of September, 1860, the district was destitute of a school house suitable to accommodate the district, and had refused and neglected to build, or repair, or fit up such school house; and, upon a petition of three or more voters of the district, stating these facts, the defendants, on the 29th ofDecember 1860, legally assessed upon the polls and taxable estates of the inhabitants of the district, such taxes and sums of money as were necessary for the purpose of building, &c., a suitable school house, &c., and issued the warrant, &c.

The-plaintiff filed two replications to. this plea:—

I. That, on the 25th of September 1860, there was no such district.

H. That said selectmen did not, on the 29th ofDecember 1860, upon a petition of three or more voters of said district, — stating the facts as in said plea mentioned, — legally assess upon the polls and estates, &c., such taxes and sums of money as were necessary to build, &c., a suitable school house,. <fec.

On these replications issues were joined, and, upon them and the general issue, a trial was had, and a verdict, by consent, ordered for the plaintiff.

The first question is whether there was a legal school district known as No. 9 and 16, or No. 9, or No. 9 and 16 united. On this point it appears, that, at a town meeting on the 13th of March 1860, duly called and holden, it was voted "to unite school districts Nos. 9- and. 16”; and no objection is made to the legality of the meeting,, or to-anything save the authority of the town to unite two districts- in this way. But we think this objection is not well founded. The statute of June 23, 1858,. ch. 2108, Pamph. Laws, provides,, that, "at any annual March meeting, any town may be divided into school districts by a vote of the town, and the limits of such districts defined, and, from time to time, altered as convenience may require; provided that no alteration of existing districts shall be made without the previous written recommendation of the superintending school committee and selectmen of the town, which shall be recorded.”

School districts being public corporations, although with very limited powers, there is nothing of the character of vested rights to prevent the exercise of the power given to towns by this act, according to the fair construction of it. In this respect school districts stand in no better situation than towns, which may be altered from time to time by the Legislature. Bristol v. New Chester, 3 N. H. 524, 532. In this case Bristol was formed of New Chester and Bridgewater, and in the act it was provided that the corporate property of both New Chester and Bridgewater, that was situated within the limits of the new town, or the avails thereof, should belong to Bristol; and it was decided that this provison was constitutional. Similar doctrine is held in Massachusetts as to school districts. Richards v. Daggett & al., 4 Mass. 534, where Parsons, C. J., holds the power to be reasonable, saying, that, in time, the jmpulation or wealth of a particular part of the town may be much changed, so as to require an union or sub-division of existing districts. So also is School District No. 1 in Stoneham v. Richardson, 23 Pick. 62.

The construction to be given to the law would seem to be settled by the case of Perkins v. Langmaid, 34 N. H. 321, 323. That was the case of a new district formed of inhabitants of two adjoining towns, including all the inhabitants.in one entire district. The act under which the new district was formed, — Compiled Laws, ch. 73, sec. 13, — provides that the selectmen may form new districts by the union of inhabitants of such adjoining towns, "and may for this purpose set oif individuals with their taxable property from existing districts”; and it was '.held that the union of entire districts was clearly within the spirit of the act. Under the general power to alter the limits of districts, we think it equally clear that two existing districts can be united by vote of the town. We are aware, that, by the law of 1857, ch. 1967, two contiguous districts may now unite by a two-thirds vote, but we do not think .that this law can take away the power before held by towns.

The question then arises whether at the time of the vote of March 1860, uniting districts Nos. 9 and 16, such districts legally existed. It appears, that, at a town meeting holden on the 26th of December 1851, the town was divided into sixteen school districts, among which were districts numbered 9 and 16 ; but sundry exceptions are made to the legality of the meeting and the proceedings thereof. It is objected that there was no competent evidence of the existence of a warrant for said meeting, or that legal notice of the meeting was given; but the records of the town, as the case finds, showed a warrant for a town meeting, October 9, 1851, the second article of which was to see if the town will alter the boundaries of any of the school districts in town, or annex the land not now included within the limits of any school district, to any school district in town, and the case finds that the warrant was duly posted and returned. Nothing further of the character of this warrant is stated, and it is to be presumed that in other respects it is right. The point intended to be made, as we conceive, is, that the article in the warrant does not lay the foundation for a vote districting the town anew. We are of the opinion, however, that, under the article to see if the town will alter the boundaries of any of the school districts in the town, the town might rightfully alter the boundaries of all the districts, and thus in facti'district the town anew. The article certainly gives notice that the limits of any and every district may be acted upon and altered, and under that, it would seem, according to Perkins v. Langmaid, before cited, that existing districts might be united, and if so, clearly the limits of all might be altered and defined. School District v. Tapley, 1 Allen, 49; Blackburn v. Walpole, 9 Pick. 97. These views also apply to and dispose of the eighth objection taken by the plaintiff, viz, that the town assumed to act upon matters not within the warrant.

One exception is that there was no evidence of the time at which the meeting at Asa Shaw’s counting-room was to have been held, or was held. The record states a meeting held according to the warning on the 9th of October 1851; the adjournment to the 26th of December 1851; the meeting on that day and the choice of a moderator pro tem.,and an adjournment of the meeting to the counting-room of Asa Shaw, and a record that it adjourned accordingly; and then the votes establishing the sixteen school districts, all certified by the town clerk, and appearing under the date of December 26th, 1851. Under these circumstances, we think it may be taken and understood that the adjournment was to meet at Shaw’s counting-room forthwith; and if the meeting could lawfully be adjourned to another place, we think we may presume from this record, that it was rightfully done here, in the absence of any proof to the contrary. In regard to the adjournment to a different place we think it quite clear, that, under some circumstances, it may be done. The law prescribes no place for holding town meetings, and although good faith and fair dealing will be required in respect to the time of entering upon the business of such meeting, as well as the adjournment and resumption of business, yet, in the absence of evidence to the contrary, reasonable presumptions will be made in favor of the regularity and good faith of the proceedings; and therefore in case of the adjournment to another place it will be presumed to be for good cause until the contrary is made to appear. In the case of McDaniels v. Flower Brook M. Co., 22 Vt. 274, this principle was applied to the case of aprivate corporation where the by-laws of this corporation required it's meetings to be at its counting-room, and the meeting in question was, according to the record, at the dwelling house of the general agent and clerk; held that the court would presume, in the absence of proof to the contrary, that the counting-room was, for the time being, at that place. This disposes also of the third, fourth, and fifth objections of the plaintiff.

The sixth objection is that the certificate of the town clerk is uncertain and insufficient. The precise objection is not pointed out, but if it be formally defective it can be amended.

The remaining objection is that the description of districts numbered 9 and 16 is imperfect, uncertain, and wholly insufficient. Upon a careful examination of the descriptions as furnished by the case, we are unable to perceive the defect suggested, nor is it pointed out. Our conclusion, then, is, that at the time of the proceedings in question there did exist a school district in Lyme composed of what was formerly .known as districts numbered 9 and 16, the record being amended as suggested. This conclusion makes it unnecessary to examine the question whether it is sufficient to show a school district de facto.’ It may be observed, however, that it has been decided in this State, that a vote to raise money by a school district whose limits have not been defined by a legal vote of the town is void, Johnson v. Dole, 4 N. H. 478; and it might be difficult to make a distinction between a tax assessed by the selectmen upon the vote of the district, and one assessed by them as in the case before us. The case of School District v. Aldrich, 13 N. H. 139, holds that a division of the town into school districts must be a territorial division, and not by the mere designation of householders or inhabitants; and this was applied in a case where the district brought a suit upon an award. See also Osgood v. Clark, 26 N. H. 307. The question, then, is whether the tax against the plaintiff was duly assessed. The first objection is that the petition to the selectmen is insufficient. It states that school district No. 9 is destitute of a school house so situated as to accommodate the legal voters of the district; that at a legal meeting of the district it neglected and refused to raise money to build, repair, remove, or fit up such school house, and does still neglect and refuse to do the same and therefore prays the selectme n to build, remove, or fit up a suitable school house according to the statute made and provided. To this it is objected that the petition is not for the assessment and collection of a tax, but to build a school house, &c. We think, however, that in this respect the petition is not defective. It states the facts which give the selectmen power to build a school house and to assess a tax therefor, and prays them to build; and this necessarily implies a request to do whatever is necessary to provide such house. The law provides that if any district is destitute of a school house, or shall suffer the same to be out of repair, or shall be ordered to remove or fit up the same, or to raise any money, or do any act required by law, and shall neglect so to build, repair, remove, or fit up such school house, or raise such sum, or do such act, the selectmen, upon petition of three or more voters resident in the district stating such facts, may assess and collect such sum of money as may be necessary and cause such house to be built, &c. It is clear that the statute does not in terms require that the petition should request the selectmen*to assess and collect a tax, but onty to state the facts which authorize them to do it, and we think it is not necessary by implication. The petition states that the district is destitute of a house, that it refuses to raise money to build one, and requests the selectmen to provide such house; and we think this is sufficient without pointing out the particular steps that are required to be taken. It is enough that they are requested to do under the statute what implies the necessity of raising money by a tax. Upon this principle, articles in warrants for town and district meetings, not expressly stating the precise subject of the vote, have been held sufficient; Blackburn v. Walpole, 9 Pick. 97, where the article in the warrant was to adopt measures in relation to their ministerial concerns, and there was a vote to raise money. So in Dix & al. v. School District No. 2, in Wilmington, 22 Vt. 309, where the warning was to see what measures the district will take in relation to building a school house, and it was voted to purchase land for that purpose. So is Ford v. Clough, 8 Greenl. 334. So, in applications to take the poor debtor’s oath, an application to be admitted to take the-prescribed by the 200th chapter of the Revised Statutes, omitting the word oath was held sufficient. Fernald v. Noyes, 30 N. H. 38. So, where the application omitted to state that the debtor had no property. Fatonv. Miner, 5 N. H. 542. So, where it states that the debtor is desirous to take the benefit of the law for the relief of poor debtors, without stating that he wishes to take the poor debtor’s oath. Dunham v. Burlingame & al., 2 Met. 271.

Another objection is that the petition applies to district numbered 9, and not to the united districts; but, there being evidence tending to prove that the united district was known sometimes as No. 9, sometimes as No. 9 and 16, and sometimes as No. 9 and 16.united, the jury would have been warranted in finding that the petition applied to the united district. No name appears to have been given it by the vote,and,like individuals, it may be known by more than one name. Angell & Ames on Cor. 79, and cases cited.

It is also objected that the defendants offered no evidence that the amount assessed by them was necessary. But we are of the opinion that the validity of the tax cannot depend upon the fact whether the estimates of the selectmen were correct or not. In fixing upon the amount they act in the place of the district, which has failed to do its duty, and, for aught we can see, their determination must stand much upon the same footing as the vote of the district. They are, of course, liable to estimate the cost of the school house too high or too low, but if their judgment is fairly exercised, and a tax assessed accordingly, we think it cannot be rendered invalid by showing that the expenses were in fact less than the estimate. Until the contrary, then, is shown, it will be presumed that the selectmen acted rightly and in good faith, and that the taxes assessed were necessary.

It is further objected that the proceedings of the selectmen in locating the school house were not recorded. It does appear-, however, that they were returned to the town clerk’s office, or, at least, the copy used in evidence was certified by him as a copy, and as the specific objection is to the want of a record, it may be assumed that the report was returned ; and the question is whether a record also was necessary to give validity to the location. By the Revised Statutes ch. 71, sec. 5, (C. S. ch. 75, sec. 5,) it is provided, that, in case a school district do not agree upon a location for a school house, the selectmen, upon application of three or more voters of the district, may give notice, and,after a hearing, "their report designating a location, which shall be recorded in the books of the town, shall be binding upon such district as if made by a vote thereof.” Upon a careful consideration of adjudged cases in this State upon subjects analagous to this, we are of the opinion, that, where such report is returned and filed in the town clerk’s office, the location is not rendered invalid by the neglect of the town clerk to perform his duty by recording it. In regard to the laying out of highways by selectmen, it was held that by implication a record of the return was necessary under the old law, as it is expressly, under the present law, Comp. St. ch. 52, sec. 14, Hardy v. Houston, 2 N. H. 309; but it was held in that case, that, when the doings of the selectmen are returned to the town clerk and put on file, it is a sufficient recording within the meaning of the statute; and so in Hayes v. Shackford, 3 N. H. 10. In respect to the assessment and collection of taxes, it was held in Hayes v. Hanson, 12 N. H. 290, that a provision of the statute requiring that the certificate of the oath of assessors be filed and recorded in the office of the town clerk, is merely directory, and that the want of such record did not invalidate the tax. So, where the statute authorized the selectmen, in thirty days after a sum voted by a school district had been certified to them, to assess a tax, it was held that this was merely directory, and that the tax would be legal though assessed after the thirty days, upon the ground that it was wholly immaterial in respect to the tax-payers when it is assessed. In Smith v. Bradley, 20 N. H. 117, it was held that neither the record of the invoice and assessments, nor the return of copies thereof, was essential to the validity of a tax. This was under the laws of 1827, requiring the selectmen to have their invoices and assessments recorded by the town clerk, or to leave attested copies thereof seasonably with him for that purpose, that the inhabitants and other’s rated may inspect the same. By the Revised Statutes ch. 43, sec. 6, it is provided that invoices and assessments, or a copy thereof, shall, prior to the first day of July, be left -with the town clerk and recorded by him. Under this law it was decided in Scammon v. Scammon, 28 N. H. 431, that the provision was merely directory ; it being well suggested that the validity of the tax, after the warrants had been committed to the collectors, and taxes perhaps paid, could not depend upon the punctual performance of this duty. The case of Cardigan v. Page, 6 N. H. 191, where a different doctrine was held in respect to non-resident taxes, was cited; and it was held that the doctrine of that case did not apply to taxes generally, however it might be as to non-resident taxes ; and it may be observed also, that the decision in Cardigan v. Page, was under a different law much like that of 1827, before referred to, requiring copies to be seasonably lodged for record. So the law requires, that, within ten days after any sale for non-resident taxes, the collector shall deliver to the town clerk an account of sales winch shall be recorded, Rev. St. ch. 46, sec. 9; and yet it was held in Gibson v. Bailey, 9 N. H. 168, that it was enough to put the account on file in the clerk’s office. Again it is provided that no conveyance of real estate for more than seven years shall be good against any but the grantor and his heirs. unless the deed be attested, acknowledged and recorded, and still a deed not recorded is constantly held to be good against a third person having notice thereof.

It is quite clear that there are many cases where the statute requires proceedings to be recorded or certificates filed where those provisions are regarded as merely directory, and not as steps necessarily precedent to the validity of the act, and most of the decisions referred to are founded upon this distinction. What provisions are to be deemed directory merely, must depend upon the nature and object of each regulation and the apparent intention of the legislature. It is obvious that cases may exist where the act or proceedings are designed to take effect at once, and the provision for a record merely designed to preserve the evidence of it; as in the case of the registry of marriages or a case where the provision is for a record at a period subsequent to the time when other steps based upon the validity of the act or proceedings to be recorded, are required by the law to be taken. The case of recording the invoice and assessments by the first of July when the warrant is required to be delivered to the collector by the 30th day of May, and a copy of the list of non-resident taxes delivered to the deputy secretary on or before the eighth day of the June Session of the Legislature, would seem to be in point, as a case where the record was not required until after the assessment had gone into effect, and therefore upon general principles could not be regarded as a condition precedent. 1 Chitty’s Pl. 323. We do not propose, however, to decide this point, as it may be affected by other provisions, and by considerations derived from the general nature of the law. The general principles applicable to questions of this sort are laid down in Bank of the United States v. Dandridge, 12 Wheat. 64, 85; United States v. Van Zandt, 11 Wheat. 184; Jackson v. Young, 5 Cowen, 269; Williams v. School District, 21 Pick. 75; Ferris v. Smith, 24 Vt. 27, where the filing of. an officer’s deputation in the clerk’s office for record was held sufficient though the statute required a record.

In the case before us, there is nothing, we think, that evinces a legislative intention that the report should be actually recorded before the proceedings take effect. On the contrary, we think it best accords with the interpretation given to similar provisions, and with the practice in such cases, to hold that after the return and filing of the report the neglect to record it cannot affect its validity. The recording of the report is no part of the duty of the selectmen, and the validity of the location ought not to be affected by the neglect of the town clerk unless, in express terms or by clear implication, such is the law; especially when, by placing the report on file, the evidence is preserved and notice given to parties interested, which would seem to be the main purposes of the law. To this point the cases of Hardy v. Houston, 2 N. H. 309, Hayes v. Shackford, 3 N. H. 10, and Gibson v. Bailey, 9 N. H. 168, before cited, are directly in point, and so is Ferris v. Smith, 24 Vt. 27. The case of deeds and other conveyances of land is also in point. There, although the statute requires them to be recorded, yet, if they are lodged in the registry with the purpose of having them immediately recorded, the vendee’s title will not be postponed by an omission of the register to record the same until after a subsequent attachment or conveyance. So held in Vermont where their statute of enrolments is similar to our own. Bigelow & ux. v. Topliff & al. 25 Vt. 273, 284; Jarvis v. Aikens, 25 Vt. 635; Hine v. Robbins & al. 8 Conn. 342; Dodge v. Potter, 18 Barb. 193.

Upon these views there must be

A new trial.