Perkins v. Langmaid

34 N.H. 315

Opinion

Sawyer, J.

Prior to the revision of the statutes in 1842, no general law existed for uniting school districts in different towns, and until the passage of the act of June 26,1845, entitled “ an act in addition to chap. 69 of the Revised Statutes,” Comp. Stat. 167 ; none existed for annexing an inhabitant of one town to a district in another, nor for constituting a district composed of inhabitants of, or comprising territory within, different towns. Prior to these enactments the only mode of effecting either of these purposes was by special act of the legislature.

The provisions of the Rev. Stat., ch. 69, secs. 8, 9, apply only to the case of two contiguous districts, in adjoining towns, uniting for the support of schools from year to year, so long as they may agree; their separate organization or districts being maintained and the proceedings of each in raising, assessing and collecting money for school-house purposes, as well as all other district purposes, being the same as before. The act of 1845, in addition to this chapter of the Rev. Stat., provides for the union of citizens of different towns in one school-district, in two modes ; first, under the first section, by disannexing an inhabitant of one town from the district in that town, and annexing him to a district in another town ; and secondly, under the second section, by creating a new district with boundaries crossing the town lines, and embracing territory and the inhabitants living upon it within different towns. Proceedings under the first section do not change the boundaries, or in any way modify the organization of existing districts ; their effect being merely to transfer the individual and his taxable property from one district to another; treating him as a member of the district to which he is transferred, though continuing to live within the limits of the other.

The second section provides for uniting together citizens of different towns in one district, by the formation of a new district, embracing territory lying partly in each town. It declares that “ the selectmen of two adjoining towns may, on petition of persons interested, form new school districts by the union of inhabitants of such towns, and may for this purpose set off individuals, with their taxable property, from existing districts and define the districts as formed, by metes and bounds.”

If the district in question was legally established under either of the statutory modes of uniting together citizens of different towns for school purposes, it is manifest it must be under the provisions of this second section. We think the proceedings in 1852 were such as to constitute a substantial compliance with the requirements of that section.

It is objected, that it does not appear from the petition that the petitioners were interested, within the meaning of the word as used in the section, and that this should appear upon the face of the petition, in order to give the selectmen jurisdiction of the matter. But we think if it is necessary that the interest of the petitioners should be alleged, it sufficiently appears upon this petition. It is set forth in it that their interest will be promoted by establishing the new district. This could not be if they had no interest in the matter. The statute does not specify the nature of the interest intended, and the petition need not be more specific. It is here in substance alleged that they have an interest to be affected by the proceeding.

It is further objected, that the selectmen have power only to set off such persons as petition therefor, and to constitute such district as may be defined in the petition. The object of the act is to provide a more convenient method of forming such districts than by resorting to the legislature for a special act. Some such latitude of discretion as would be exercised by the legislature in such case is obviously proper to be given to the selectmen. The power is expressly limited, under the first section, to disannexing the petitioner only, and for the obvious reason that, being done for his accommodation, it should be only at his request. Under the second, the selectmen are to proceed upon the petition of persons interested, to form a new district and define its boundaries. This implies that they are to decide upon the question, where shall the boundaries be established, and consequently who shall be included within them. In establishing a new district, to include a greater or less number of the inhabitants, and embrace more or less of the territory of each town, the personal views of one or more individuals may be in opposition to the public good. The difference in the phraseology of the two sections clearly indicates that while the action of the selectmen under the first is to be limited to the individual petitioning, under the second the wishes of individuals are to be made to yield to considerations of the general advantage.

Nor is the exercise of the power by the selectmen necessarily to be confined to the setting off a part only of the territory or inhabitants of the two districts. The union of an entire district in one town, with the whole or a part of the district in the other, is clearly within the spirit of the act. In such case it may be said, in the language of the act, that individuals are set off from the existing district, as well as in the case of setting off a part of its members. In either case they are severed and disannexed from the old corporate existence and annexed to the new. There is nothing in the terms of the act nor in the nature of the proceeding to require that any thing should be left of the old district, to keep up its separate existence.

It is also clear that the power of the selectmen is not made to depend upon the assent or dissent of a majority of either district. Such limitation is not expressed in the act, and it contains nothing to imply it.

The district, then, had a legal existence in 1853, -when the vote was passed to raise the money. The defendants object that if the proceedings in 1852, establishing the district, were legal, yet the money was raised in part to defray the expense incurred in repairing the school-house in 1851, prior to the time when the district first had a legal existence, and that they had no power to raise money for that object. The expenditure was one which resulted to their use. By reason of it they had a schoolhouse prepared for their accommodation. It is immaterial whether, in form, the money was raised to purchase a house prepared for them occupation, or to reimburse the expense incurred in thus preparing it. It was clearly equitable that they should recognize the outlay of the §161.98, as made under their authority; and they might properly raise money for the purpose of refunding the amount expended, as so much agreed to be paid by them for the purchase of the house. This view is in accordance with the opinion of the court in Harris v. School District in Canaan, 8 Foster 58, and we see no reason to doubt its correctness.

The next question arises upon the proceedings in assessing the tax, and making out and committing to the collector the warrant and list under which he distrained and sold the plaintiff’s property. Whether or not these proceedings were in conformity to law must depend upon the statutory provisions upon those subjects. The list and warrant were signed by the selectmen of Chichester alone, of which town the plaintiff was an inhabitant. There is no doubt that in this the proceeding was correct. However the assessment is to be made, the list and warrant are to be committed by the • selectmen of the several towns to the collectors of their respective towns. Laws of 1845, ch. 221, sec. 3 ; and ch. 223, sec. 2. The assessment is described in the list and warrant as having been made by the selectmen of Chichester alone. In fact, it was made by the selectmen of Chichester and Loudon, acting as a joint board, and so we understand it appears upon the record of the assessment. The enquiries then, upon this part of the case are — 1, was the assessment properly made by the joint board ? and 2, if not, does the recognition of the assessment contained in the list and warrant, as made by the selectmen of Chichester, cure the irregularity ?

By the third section of the act of June 26, 1845, it is declared that whenever a school district, composed of the inhabitants of different towns, shall vote to raise money for schoolhouse purposes, the clerk of the district shall notify the selectmen of the several towns of the amount of money to be raised, and that it shall be the duty of the selectmen of each town to assess upon the polls and estate of the persons belonging to the district within their respective towns, their due proportion of the sum so voted to be raised, having regard to the entire inventory of all the inhabitants of the district. Whether by the expression, “ a district composed of inhabitants of different towns,” as thus used, is intended a district lying wholly in one town, to which an inhabitant of another has been annexed in the mode prescribed in the first section of the act, may admit of some doubt; but there can be none that it does refer to such district as may have been formed under the provisions of the second section. A new district, constituted by uniting together inhabitants of the two towns under the same organization, in the mode prescribed in that section, must be a district composed of the inhabitants of different towns, within the meaning of the third section. And money voted to be raised by such district must be assessed in the manner therein prescribed. That mode is by the separate action of the two boards of selectmen, each assessing upon the polls and estate of such members of the district as are inhabitants of their respective towns, the proportion of the whole amount to be paid by them, according to the ratio which their inventory bears to the entire inventory of all the members of the district in both towns. The sum to be assessed is at once ascertained by instituting the mathematical proportion. There is no occasion for the joint action of the two boards in any step of the proceeding, and the provisions of the section clearly indicate that none such is to be had.

It is difficult to perceive why the same mode of assessment might not be adopted in the case of an existing district to which an inhabitant of another town has been annexed. If there had been no further legislation on the subject it would probably be held that the legislature must have intended to include such district, as well as one organized under the second section, within the designation of a district composed of the inhabitants of different towns, and the provisions of the third section be considered as governing in both cases. But by the subsequent act of July 2,1845, entitled an act in addition to ch. 71 of the Rev. Sfcat., Laws of 1845, ch. 223, a distinction would seem to be made between the two cases, for which it is difficult to assign any satisfactory reason. This act provides that all persons who may be severed from a district in one town and annexed to one in another, shall pay a just proportion for building, repairing or purchasing school-houses in the districts to which they may be annexed, and that whenever such district shall vote to raise money, the clerk shall certify the vote to the selectmen of each town, and the selectmen shall form a joint board for the assessment of the tax.

It is clear, then, that by force of these acts the assessment in ¡the case of a district in one town, to which an inhabitant of another has been annexed, must be by the joint board of the selectmen of the two towns; while, in the case of a district composed of the inhabitants of two towns, by establishing its boundaries so as to include territory and persons living upon it in two towns, the assessment must be made by the selectmen of each town separately assessing the proportion to be paid by the members of the district residing in their respective towns. It is unnecessary to inquire why the legislature have adopted these different modes of assessing the tax in the two cases. It is plainly so enacted, and there is an essential difference in the two modes of procedure. To some extent the assessors of taxes act judicially. Many of the questions arising in the course of the assessment involve the exercise of judgment, such as the additional per cent, to be raised to meet abatements ; Rev. Stat., ch. 43, secs. 3, 4; making the assessment upon a new invoice or upon the one taken for the general purposes of taxation; Laws of 1844, ch. 148, sec. 1. It often occurs that questions of great difficulty and doubt arise in reference to the vote of the district to raise the money, and the copy of the record as certified to them by the clerk, and these must be determined by the assessors for the time, and their proceedings regulated accordingly. That the business of assessors as such consists in something more than mere mathematical computations, is very clear. The assessment is not completed until a record of the taxes assessed is made and certified by them. Rev. Stat., eh. 43, sec. 6. This constitutes one step in the process of assessing the tax, for it is the only legal evidence of the tax assessed, and it can constitute such evidence only when it purports upon its face to be an assessment by the board to which the law assigns that duty. If the record of the assessment in this case purports to be an assessment by the joint board of the selectmen of the two towns, and is verified by their attestation as such, it cannot be regarded as an assessment by the selectmen of Chichester alone. The majority of these selectmen, to whose judgment the law refers the questions involved in the assessment, may have been in all of them overruled and controlled by their associates in the joint board.

Nor can the fact that the assessment is described in the list and warrant as made by them, supply the -want of the proper record evidence of a legal assessment. The list and warrant, in order to constitute a justification of the proceedings in the distress and sale of the plaintiff’s property, require to be supported by due proof from the proper record of the legal assessment. Without that they are of no validity, and the recitals contained in them cannot be substituted to supply the place of the record evidence of the assessment which the statute requires. If, therefore, the record shows the assessment to have been made by any other persons than the selectmen of Chichester, although it may appear that they acted in conjunction with them, it is a fatal defect, rendering the assessment void.

If neither party moves that the case be discharged under the provision contained in it for that purpose, judgment will be rendered in the Court of Common Pleas for the plaintiff, for such damages as he may have sustained by reason of the illegal seizure and sale of his oxen.