Haverhill v. Orange

47 N.H. 273

Opinion

Nesmith, J.

The case finds that whatever settlement the pauper Samuel Shirwell and family obtained, they had through Walter Shirwell, the father of said Samuel — the said Samuel never having gained a settlement for himself and children in his own right. Eor the purposes of this case, wé then assume that Walter Shirwell was a resident within the present limits of the town of Orange, for the time stated by the referee ; and that, during that time, he was assessed by the authority of said town in the public taxes upon his poll and his other ratable estate, according to the finding of the case. Admitting the facts to be as claimed by tbe plaintiff, as to Walter Shirwell’s actual residence, and as to the assessment of bis public taxes, then the important question arises, and is to be tested by the proof. Did the father, Walter Shirwell, so pay or discharge the taxes which were thus assessed upon his poll or his estate, as to gain for himself and family a legal residence in the town of Orange? In other words, were his highway taxes legally discharged in the way and manner required by law ? According to the frequent decisions in this State, the plaintiff, in order to recover in this case, must establish clearly the affirmative of this issue. Jaffrey v. Cornish, 10 N. H. 505; Lisbon v. Bath, 21 N. H. 319; Bradford v. Newport, 42 N. H. 340, and cases there cited.

For the purpose of creating a legal obligation to support a pauper, our statute regulating that subject is construed strictly. Therefore, a strict compliance with its provisions must be first shown, before such liability attaches. The rule, requiring the actual payment of the tax to be shown, is equally imperative, whether assessed under the fourth or-tenth modes of gaining a settlement under our statute. It was settled, in the aforesaid case of Bradford v. Newport, that a highway tax must be paid in order to acquire a settlement, and proof that such highway tax had not been demanded would not avail the party offering it.

In another case, it has been settled that it was not enough that payment of the tax was excused by a vote of the town. Shrewsbury v. Salem, 19 Pick. 389. Nor could the tax be abated by the selectmen, or any part of it waived by the collector. Lisbon v. Bath, ante. The neglect of town officers to enforce the collection of a tax, which might have been collected by due diligence, will not operate as a payment upon the question of settlement. Robbins v. Townsend, 20 Pick. 345.

Upon the ground that the aforesaid decisions are founded upon just principles, we do not see how the town of Orange could, either by special vote or the action of the selectmen, make a binding and legal contract with Walter Shirwell, under the effect of which he did year after year escape or avoid the common obligation of paying his highway taxes.

It was not until the year 1848, that the legislature, by a special statute, conferred upon selectmen the right to permit citizens, located as Walter Shirwell was, to expend their highway taxes upon private ways leading from the main public road to their dwelling houses. That statute enacts, "That the selectmen of any town may, whenever they may deem it proper, permit any person who may not reside upon a public highway, to expend the whole or any part of his highway tax upon any private way, leading from the public highway to the dwelling house of such person.” This statute came too late to affect the rights of the parties, which had been previously acquired in this case. No doctrine 0† presumption, arising from the lapse of time, that Walter Shirwell’s taxes were paid during his residence in Orange, can be entertained, where the referee has expressly found the fact that they were not paid either in money or labor.

But admitting, as claimed by the plaintiff, that, under the vote or common usage, as practiced upon in other towns, sard Shirwell, for a series of years, had had the license or authority conferred upon him by the town of Orange, to work out his taxes upon the private way leading to his dwelling house, then we think such a usage or authority would carry with it the implied correspondent duty or obligation, that he should, in good faith from year to year, bestow the labor equal to his tax upon his private way. The referee finds that Walter Shirwell did no work upon his private way, and there is no evidence that the town authorities exercised any diligencé in enforcing the collection of his tax. Therefore, we can come to no other conclusion, than that the highway taxes of Walter Shirwell were not so paid as to enable him or his children to acquire a legal settlement in Orange. Nor do we see that the proceedings respecting the line of the town would in any way affect or change this view of the case. Nor will it become necessary to inquire into the legality of the course adopted for the payment of Shirwell’s school tax. Under the finding of the referee, and in accordance with the terms of the case, there must be

Judgment for the defendant.