Wells v. Burbank

17 N.H. 393

• Court: Superior Court of New Hampshire
• Decided: August 15, 1845
• Status: Published

Opinion

Parker, C. J.

Success appears to be an unincorporated place. The charter, as it is called, of February 17, 1773, is a grant of the land within the limits specified, and the grantees might therefrom make partitions of the lands thereby granted. For that purpose they were quasi a corporation, and tracts of land thus granted are usually denominated townships. But this grant does not constitute a town within the meaning of the statutes. It confers no right upon the proprietors to exercise town privileges. Most of the grants of this character were made, as in this ease, before there were any inhabitants of the lands granted. Where, by settlement, the inhabitants were numerous enough to act as a town, a special act of incorporation has usually been passed. The act of June 26, 1827, declaring the inhabitants of every town to be a body corporate, shows that some act of incorporation besides the original grant of the lands was deemed necessary, and it was probably intended to cover cases where from some omission it might be difficult to show a special incorporation. That it cannot apply to places which have no inhabitants is very clear. The incorporation is of the inhabitants of the town or township, and not the grantees of it.

Moreover, if the grant of the lands operated as an incorporation of the grantees as a town, there would be incorporated towns, with town privileges, where there were not, and never had been, any persons who could exercise those privileges, because there were no inhabitants ; and there would be no unincorporated places except the public lands, which are not taxable. Such a construction would be preposterous.

The statute of July 1, 1831, chapter 32, providing for the collection of taxes in certain cases, expressly enacts that the treasurer of the State, when any taxes are or shall be proportioned to any place unincorporated, having so few inhabitants as to be incapable of choosing town officers, shall assess the proportion of such place, and commit the same to the sheriff of the county, with a warrant under his hand and seal, empowei’ing the sheriff' to collect the same. The second section provides that unless the treasurer is certified, under the hand of the clerk of the proprietors, that such place is divided among the proprietors, with a copy of such division or partition, so as to enable him to tax the several owners of the same, he shall assess the whole in one sum.

The act to establish the proportion for the assessment of public taxes among the several towns and places in the State, passed January 13, 1837, enacted, “that of every thousand dollars of public taxes hereafter to be raised, the proportion which each town and place shall pay, and for which the treasurer of the State is hereby authorized to issue Ms warrant, shall be as follows,” &e. In the list which follows, Success is set down at “ twenty cents.” The second section of that act directs the treasurer for the time being to issue his warrant accordingly.

The case finds that Success was uninhabited during the period in question, and no division had been certified to the treasurer.

When, then, the legislature, July 6, 1839, voted to raise forty thousand dollars for the use of the State, a very simple computation ascertained the proportion of Success to be eight dollars, and the proportion act, before cited, authorized the treasurer to issue Ms warrant for that sum. No formal act of assessment, aside from the warrant itself, was required, or could have been of any avail. There was no meeting to be had, no consultation necessary, no discretion to be exercised, and no circumstance to be considered, except that no certificate of a division of the township had been filed in the treasurer’s office. The act to raise the sum of forty thousand dollars, and the existing proportion act, constituted a substantial assessment of the amount, to which the treasurer was required to give effect, as such, by a warrant reciting the fact, and empowering the sheriff to collect the amount. The treasurer might have entered a list of assessments upon his books. As a matter of form it would have been well. It would have shown the amount chargeable upon each town and place. But it would have added nothing to the legal effect of the acts of the legislature already cited. When the treasurer is certified by the clerk of the proprietors that the township has been divided among them, he is required, by the second section of the act of 1831, to assess the original owners according to their several interests in quantity, without regard to the quality of their lands ; and as these are not of a public character, there may be more necessity of a formal assessment, showing the amount charged upon each, although, in such case, it depends upon the number of acres, and not upon an appraised value. Foxcroft v. Nevins, 4 Greenl. 72, was a ease of assessment by selectmen. Our statute regulating assessments by selectmen provides that they shall make lists of the assessments under their hands, and commit the same to the collector, with a warrant, &c. No similar provision is found relative to the assessment by the treasurer upon an unincorporated place. The statute óf January 4, 1833, chapter 108, to establish the rates at which polls and estates shall be assessed, and which, in accordance with its title, regulates the rates at which polls and personal estate shall be assessed, provides for the appraisal of real estate, and prescribes the action of the selectmen and assessors, has no reference to the taxation of unincorporated places having no selectmen, and of course did not repeal the act of 1831. The first and fourth objections must therefore be overruled.

The third objection, that, the tax and sale are illegal because the assessment was made after the time when the power of the treasurer to assess had terminated, cannot be sustained. It is true that the act of 1839 provides that the sum to be raised shall be assessed, collected, and paid into the treasury on or before the first of December, 1840. But this clause relating to time must be construed as directory to the officers, and not as a limitation of time after which no further proceedings could be had. Were this otherwise, a failure to collect by the time limited, or even a failure to pay the money into the treasury by that time, would suspend farther proceedings ; for the act is as imperative that the money shall be paid into the treasury on or before the first of December, as it is that the assessments should thus be made. A failure to accomplish the object within the time specified might render any officer in default liable for that default, but it would not discharge the tax. This clause in the act of 1839 cannot, therefore, be construed to control and limit the general powers given by the acts of July 1, 1831, and January 13, 1837, before cited.

It is not necessary to inquire whether the fee of one dollar for the warrant is or is not illegal. It has been settled in this State that a levy of an execution upon lands cannot be avoided for the" reason that the officer has taxed illegal fees, and set off land to satisfy these fees, as well as the legal debt and costs. 6 N. H. Rep. 193, Proprietors of Cardigan v. Page; 9 N. H. Rep. 80, Odiorne v. Mason. Similar decisions have been made elsewhere. The same principle would be equally applicable if, instead of setting off the lands to the creditor, the law had provided for the sale of it. If the title of the creditor, who had some control over the proceedings, could not be avoided for that reason, a fortiori, the title of a third person, who purchased under a sale by the sheriff to satisfy debt and costs, could not be. The consequences which would follow from holding levies void in such cases undoubtedly had weight in inducing courts to adopt the principle. Having been adopted, it must be applied to all cases which come fairly wi^Jiin it. If sales for taxes were to be held void because the collector had included within the sum for which the land was sold some fees or expenses which he was not authorized to charge, purchasers could rarely have any reasonable reliance upon a tax title. And this would be equally true if the unauthorized charge was a-fee which the collector was directed by the selectmen to collect for their services in issuing the warrant. The same reason must govern this case. It is certainly not the policy’of the law to discourage the collection of taxes. This disposes of the fifth exception.

The sixth objection, that it did not appear that any list of taxes was left with the deputy secretary, and that it does not appear whether the warrant of the treasurer, if that may be regarded as a list, was retained by him, as required by law, must also be overruled. The warrant containing the assessment is a list, within the meaning of the law. There is, and in the nature of things can be, no better list in a case like this. The tax is comprised in a single item, and thus in one. sense it may be said that there is no list. But if that limited signification should be given to the term “ list,” the result would be that there was nothing which the law required should be left with the deputy secretary, and so that there could be no opportunity to pay the tax to him. Such a construction would not avail the defendants, and it would be against the manifest intention of the statute.

With respect to the other branch of this objection, that it does not appear that the list was retained by the deputy-secretary the time required by law, so that persons interested would have an opportunity of paying the tax to him; there is in the case the filing of the deputy secretary that the warrant was received June 1,1841. The plaintiff also relies upon a return of the sheriff, as a part of his record of the sale, filed in the office of the clerk of this coui’t, setting forth that he caused a true and attested copy of the warrant to be delivered to the deputy secretary on or before the first day of June, 1841, and that on the third day of September, 1841, the deputy secretary, on application, returned to him a copy of the copy so delivered to the deputy secretary. The plaintiff contends that this return is not only sufficient, but that it is, under the general principles applicable to sheriff’s returns, conclusive evidence that the copy of the warrant remained in the possession of the deputy secretary during the time specified.

We are by no means clear that the sheriff’s return in relation to his proceedings in the collection of taxes is entitled to be thus regarded as evidence. There is no such provision in the statutes. The sheriff in these proceedings is not acting as the ministerial officer of the county, under his commission as sheriff, but, holding the office of sheriff, he thereby becomes, under provisions of the statutes for that purpose, collector of certain taxes. In fact, the argument of the plaintiff’s counsel appears to admit that his return is to have the same effect as the return of the collector of other non-resident taxes; and the statute of July 4, 1829, section 7, does not make the collector’s return generally — but only a copy of the record of his certificate under oath, that the advertisement was posted up according to law — sufficient evidence. It is not necessary to settle this question, because we are of opinion that the certificate or filing of the deputy secretary upon the copy of the -warrant delivered to him, showing the time it was received, is, upon general principles, applicable to such certificates, competent evidence of the time when it was filed in his office; and it is a familiar principle of law, that a state of things once shown to exist is presumed to continue until something is shown to rebut the presumption. Thus, where a man is shown to be living at a particular date, it is presumed that his life continues until some circumstance raises a presumption of his death. 1 Greenl. Ev., sec. 41; 11 N. H. Rep. 191, Smith v. Knowlton; 3 N. H. Rep. 310, Wheelock v. Hall. The principle is broad enough to cover the case. The copy of the warrant being shown to have been placed in possession of the deputy secretary on the first of June, where it ought to remain until the first of September, the fair presumption is that it did so remain, there being no particle of evidence to lead to a contrary supposition.

The seventh exception is well taken. The evidence to show that an advertisement was posted in a public place in Lancaster, for the requisite period, is a copy from the clerk’s office of the advertisement and of the certificate of the sheriff that it was posted up according to law, with a copy of the affidavit or oath of the sheriff to the truth of the certificate.

If the sheriff* might make a return of his acts in the collection of the tax which would be evidence, upon the general principles applicable to sheriffs’ returns, this return would be defective, because the certificate is that the advertisement was posted according to law, which, as a return, is insufficient. There must be some statute provision, therefore, to justify its reception. The statute of December 16, 1824, after providing for the deposit of the lists and other papers containing evidence of the proceedings of the sheriff, relating to the sale of lands, in the office of the clerk of this court, and providing that the clerk shall receive and preserve the same, and certify copies, further enacts, “ that copies of and extracts from the said papers, duly certified by the clerk of said court, may be used as evidence in courts of law in all eases in which the original might be used, and shall have the same force and effect that the originals would have, if used as evidence in the same cause.” 1 N. H. Laws, (edition 1880) 572. But it is quite clear that an original certificate of a sheriff, that he had posted an advertisement according to law, would be entirely inadmissible as evidence, and so of no force or effect whatever. "We have seen that it would not be sufficient as part of a return upon returnable process. This statute then fails to sustain the testimony. The copy of the advertisement was rightly admitted in evidence to show its contents, because the original, if produced, would have been competent evidence. But the production of the advertisement did not show that it had been duly posted up.

It has been- argued that the statute of July 1, 1831, 2 N. H. Laws 26, repeals the statute of 1824, and substistutes therefor the provisions of the seventh section of the statute of July 4, 1829, 1 N. H. Laws 566, providing for the collection of taxes assessed in towns upon the unimproved lands of non-residents. But there are two objections to this argument. The first is, that the statute of 1831, in providing that the sheriff shall have the same power and authority, with respect to the taxes committed to him to collect, which collectors of towns have, or may from time to time by law have, with respect to the taxes of non-residents, and he shall observe the same direction as town collectors of towns are, or may from time to time be bound by law to observe, &c., makes no rules whatever in relation to the evidence of his proceedings. The other is, that by the statute of 1829 the collector is to make the deposit of his papers and certificate with the clerk of the town in which the taxes are collected. It is the town-clerk who is to make the record, and it is the copy of the town-clerk’s record which is made evidence. As there was in Success not only no town-clerk, but no inhabitant, there seems to have been an insuperable difficulty in filing the certificate according to the provisions of that section, and one equally formidable against the production of such record. The statute of 1831, in the provisions cited, evidently did not contemplate any repeal of the act of 1824.

The eighth exception must be overruled. It is not necessary to settle at this time what may be a public place within the meaning of the statute. Practically it is generally supposed to mean a tavern, store, or other place where people are in the habit of resorting for the transaction of business. Perhaps a 'meeting-house, open from week to week for public worship, may come within the description. How we might hold in this case, if there had been a dwelling-house within the township, but no place more public, we have no occasion to inquire. As there was no inhabitant, there could be no public place. Lexnon cogit ad impossibilia. The result is, not that the tax could not be collected because no advertisement could be posted in a public place in the township, but that it might be collected without such advertisement, if the other notices required by the statute were duly given. The evidence on this point was therefore immaterial.

The ninth objection, that it does not appear for what the land was sold, cannot avail. The tax and costs amounted, as stated, to $33.10, of which fifteen cents were paid. The part sold was for the balance, $32.95. It was not necessary to sell separately — a part for the tax and a part for the costs. 6 N. H. Rep. 183, Proprietors of Cardigan v. Page.

The remaining objection to the sale for the State tax is equally untenable. It can be readily ascertained by computation what proportion of the township was sold. While the warrant was in the office of the deputy secretary, a “ Mr. Hall, of Portsmouth,” paid fifteen cents. This designation of the party who paid on his share is undoubtedly loose enough, but his identity does not seem to be material at this time. The share on which he paid is not specifically stated; but as it does not appear that he made any objection to the amount charged for the warrant, it must be intended that he paid his share of the fax and of the costs charged at that time, namely, of $9, and thus we find that he paid upon one sixtieth part. The sheriff sold all upon which the tax was not thus paid. The share on which payment was made, and the share sold, might have been described with more formality, but id cerium est, &c.

The additional objection which has been taken to the sale for the county tax, is fatal to that sale. The assessment of a larger tax than that which is authorized, even if the excess is only nine cents, vitiates the whole proceeding. There can be no valid sale for the collection of it. The maxim, de minimis non curat lex, cannot save it. 2 Greenl. 375, Huse v. Merriam; 15 Mass. 144, Libby v. Burnham.

After the case was closed, by the agreement to take a verdict, neither party could claim a right to introduce further evidence. The court might, in its discretion, have opened the ease for additional testimony, but we cannot revise the exercise of its discretion in refusing so to do.

Verdict set aside, and new trial.