Springfield v. Enfield

30 N.H. 71

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Eastman, J.

It has often been remarked that, as between contesting towns, the statutes regulating the settlement of paupers are construed with great strictness. It is said that upon questions of this kind there are no equities between the towns. And there is no doubt that statutes upon this subject have been construed with a strictness not surpassed upon any other question involving civil rights. Rex v. Kingswinniford, 4 Term Rep. 219; Rex v. Inhabitants of Ober, 1 East 599; Rex v. Inhabitants of Rushulme, 10 East 325; Jefferson v. Pequanach, 1 Green’s (N. J.) Rep. 187; Rex v. Ramsgate, 6 Barn. & Cress. 712; Amenia v. Stamford, 6 Johns. 92; Sherburne v. Norwich, 16 Johns. 188.

If Hopkins, the pauper, had a settlement in Enfield, it must have been acquired as prescribed in the tenth mode of section 1 chapter 65 of the Revised Statutes, which is as follows : “ Any person of the age of twenty-one years, who shall have resided in any town in this State, and being taxed for his poll for seven years in succession, shall have paid all taxes legally assessed on his poll and estate during said term, shall thereby gain a settlement in such town.” This provision is substantially the same as that contained in the act of December 16, 1828, and also in the act of January 1,1796 ; and upon it several decisions have been made by our court. Thus it has been held that in order to gain a settlement in this mode, it is necessary that the person shall have been actually taxed for his poll in the town for the period of seven years in succession. Henniker v. Weare, 9 N. H. Rep. 573; Burton v. Wakefield, 4 N. H. Rep. 47; Weare v. New Boston, 3 N. H. Rep. 203. And the selectmen have the right to omit to tax him in any year for the express purpose of preventing his gaining a settlement in the town.

Thus, also, it has been held that the tax must be actually paid; and that a negotiable promissory note, payable to a town, for the amount of a tax, will not be payment of the tax so as to give the maker a settlement in the town, even if the selectmen agree to receive it in payment of the tax. Jaffrey v. Cornish, 10 N. H. Rep. 505. And the tuhole tax must be paid; and by the individual himself personally, or by some one at his request, for him, in such a way as to make it a payment by him, and not by any one else. Lisbon v. Bath, 1 Foster’s Rep. 319.

And these decisions in our reports are sustained by many adjudged cases in other jurisdictions. Rex v. St. Sepulchre, 1 Barn. & Adol. 924; Wallkill v. Mamakating, 14 Johns. 87; Peru v. Turner, 1 Fairf. 185; Shrewsbury v. Salem, 19 Pick. 389; Robins v. Townsend, 20 Pick. 345; Wrentham v. Attleborough, 5 Mass. Rep. 430; Amenia v. Stanford, Johns. 92; Attleborough v. Middleborough, 10 Pick. 378.

Such being the law, the question is, was Hopkins taxed by Enfield for seven years in succession, and did he pay all taxes legally assessed upon him during that time ?

It is not pretended that any tax was ever assessed against Hopkins individually, or that he himself ever personally paid any tax to the town of Enfield. His name does not appear upon their books as a tax payer; and unless the giving in of the polls and the payment of the taxes by Dyer, can be held to be an assessment of Hopkins and a payment by him, he was never assessed by the town, and never paid any tax there.

Assuming that the name of Hopkins was reckoned by Dyer for seven years, being from 1843 to 1850 inclusive, as one of the number for whom he was himself taxed, and that he paid the taxes accordingly, still we think that it cannot be said that Hopkins has been taxed by the town, or that he has paid any taxes. Dyer is the only one that has been taxed. He has given in the invoice, and has also had assessed against him a number of polls; but the names that have gone to make up that number have never been entered upon the books of the town, or any taxes assessed against them. Their names may very likely be unknown to the selectmen, and at no time has there been a tax assessed that could be collected of them. They are not upon the invoice books, or the selectmen’s books, nor in the warrants delivered to the collectors. They themselves are not taxed.

This may be a very convenient arrangement both for the trustees of the society and for the selectmen of the town, but still it is a mode of taxation unknown to the law; and should the trustees at any time refuse to pay the taxes assessed for the number of polls, it would probably be difficult for the town to find any law by which they could safely enforce collection.

The payment of the taxes is also surrounded with difficulties, even if the assessment was free from them. These individuals, whose polls are numbered, do not pay the taxes. Nor are they paid with their money or at their request. The case finds no such statement. Dyer pays the taxes, and either with his own money or with that belonging to the society. Even could it be said that the payment must be regarded as made by the members of the society, still in this particular case it would not avail anything, since Hopkins was not a member of the society till December, 1844, and consequently not a member for seven years.

It is said, in argument, that if a settlement is not gained in Enfield by the members of this society by the course of taxation and payment as disclosed in the case, then may the town commit great wrongs upon other towns or upon the county. If there is any deficiency in the law, the legislature can interfere. It should be borne in mind, however, that all towns have now both the power and the right, which is often used, to omit taxing the polls of any of their residents, to prevent their gaining a settlement therein. And we think it may be said to the credit of this society, that they are not in the habit of turning off their members to be supported by the public.

We make no comments upon the doubts that might arise upon some of the facts stated in the case, such as the abatement of the taxes sometimes made, the doubt whether Hopkins’ name was reckoned by Dyer till after he became a member of the society, and whether his name was left out during any of the years, because we think the case clear upon the broad ground that Hopkins himself was never assessed in Enfield and never paid any taxes there, and that the evidence stated in the ease does not tend to show a legal settlement gained in that town.

According to the provisions of the case, the plaintiffs must be nonsuited.