Smith v. Swain

52 A. 857, 71 N.H. 277, 1902 N.H. LEXIS 23

• Court: Supreme Court of New Hampshire
• Decided: April 1, 1902
• Status: Published

Opinion

Blodgett, C. J.

We think the statute (P. S., e. 90, s. 18) requiring school-district clefks to deliver to the selectmen of the town an attested copy of every vote of the district to raise money, within ten days after the meeting, is directory and not mandatory in respect of time. Johnson v. Dole, 3 N. H. 328, 329, 330; Hayes v. Hanson, 12 N. H. 284, 290; Allen v. Bruce, 12 N. H. 418, 422, 424; Wells v. Burbank, 17 N. H. 393, 406; Hughes v. Parker, 20 N. H. 58, 71; Smith v. Bradley, 20 N. H. 117, 120; Scammon v. Scammon, 28 N. H. 419, 431, 432; Orford v. Benton, 36 N. H. 395, 403; Converse v. Porter, 45 N. H. 385, 389; Nashua Ins. Co. v. Moore, 55 N. H. 48, 54; School District v. Carr, 63 N. H. 201, 205, 206; School District v. Greenfield, 64 N. H. 84, 85; Boody v. Watson, 64 N. H. 162, 182, 183; Pickering v. De Rochemont, 66 N. H. 377, 380.

With this construction of the time limitation, which seems to have been established rather for the purpose of defining the clerk’s duties than as a step necessarily precedent to the validity of his certification, we are of the opinion that the legality of the tax voted by the district is not affected by the failure of the clerk to certify it to the defendants until the expiration of six days beyond the statutory period, and that the defendants were not thereby excused from assessing the tax by virtue of section 2, chapter 59, Public Statutes, providing that “the selectmen shall seasonably assess ... all school, sehoolhouse, and village-district taxes, authorized by law or by vote of any school or village district duly certified to them.” Whether the vote has been “ duly certified to the defendants, was not for them to determine. Their only duty was to make the assessment seasonably, and this they have failed to do.

In principle, this case is not distinguishable from School Bistrict v. Carr, supra, in which it was held that “ it is not the duty or right of selectmen to inquire into the legality of the vote of a school district to raise money; but when such vote is certified to them by the district clerk, they should assess the tax, and a mandamus lies to enforce performance of that duty.”

Exception overruled.

All concurred.