Town of Middletown v. Town of Berlin

Church, J. The first question to be considered arises upon the letter of notice, sent by mail, by the select-men of Middletown, to the select-men of Berlin, informing them, that Elijah Hubbard 2d, and his wife and children, were upon expense in the former town. That this was a legal notice of the condition of Hubbard himself, was admitted ; and the court below considered it good as to his wife also, but was of a different opinion respecting its effect upon the expenses incurred in support of his children. This entire subject is of statute regulation. We have only to determine what this requires. The 5th section of the “Act to provide for the support of Paupers,” enacts, that a letter put in the mail, stating the name of the pauper, and that he is chargeable, shall be sufficient evidence that notice was given. The name of the wife, by this letter, was in effect communicated ; the designation of her as the wife of Hubbard, was equivalent to this; it distinguished her from all other persons. But, the names of the children were not mentioned at all; nor was any designation given, by which the select-men of Berlin could determine, which, or how many, of them were paupers, or required support or removal. The plaintiffs attempted to help out this defect, by proving a subsequent verbal information of the names and conditions of the paupers, given by one of the select-men of Middletown, to a select-man of Berlin. This evidence the superior court rejected. The statute requires the select-men of every town in which a paupet belonging to another town is chargeable, [196] to give notice to such town of his condition within a limited . a ... or no recovery can be had for expenses for the time m . . ... .. , which notice is neglected. W ruten notice alone is prescribed, ancj no other is alluded fo. And this written notice may be given, either by letter put in the mail, as was done in this case, or by actual notice in writing, sent in some other way. To sanction verbal notice, however definite, would be to disregard this provision of law, and render it useless. But a more important question remains. Berlin was the cfriginal place of this pauper’s settlement; but he had resided in the town of Middletown for more than six continuous years before these expenses were incurred, and so as by commor-ancy to have become a settled inhabitant there, unless he had neglected or refused, within that time, to pay any taxes, assessed upon him, after legal demand. The plaintiffs, as they were bound to do, in order to avoid the effect of such residence in their town, attempted to prove, that taxes had been legally assessed upon the pauper, which he had not paid. The burthen of this proof was upon them ; and they recognized this, and offered in evidence what they called, assessment lists of the district of Westfield, in the town of Middletown, annually made up, for several years; and especially one for the year 1835. This was made up and signed, by Luther Bowers, assessor; and was by him lodged in the office of the town-clerk, and was accompanied by no evidence that it had ever been seen, heard of or sanctioned, by any other assessor ; although it was conceded, that during all this time, the board of assessors of the town of Middletown consisted of five persons, duly chosen, qualified and acting. This assessment was in truth, and on its face purported to be, the sole act of Bowers, and was confined to a single section of the town, called Westfield district. This evidence was properly excluded, by the superior court. The pauper had, presumptively, acquired a settlement in Middletown, by an acknowledged residence there of more than six years. This could only be rebutted, by proof that he was a tax debtor — that a tax had been legally imposed upon him, which, upon demand, he had refused to pay. The assessment lists of the several towns are the only rule and basis upon which counties, towns and other communities can levy taxes. These must be legal, or the taxes laid and apportion [197] ed upon them, cannot be. It is not sufficient that a colourable or pretended tax has been demanded of Hubbard, and payment refused ; for it may be, that the refusal was upon the ground of the illegality of the tax, and not because he was unable to pay it. This pretended assessment list was in no sense the act of the board appointed by the inhabitants of Middletown to value and equalize their property. That board consisted of five persons ; but this paper is the partial and unauthorized act of one only. The rule governing the execution of private and public powers has long been settled. A power conferred upon two or more persons, by individuals, for private purposes, must be executed by all, unless it be provided, by the act conferring the power, that a less number may effectually execute it; but an authority imposed by law for public purposes, and especially for purposes of a judicial character, may be executed by a majority, if all have been legally notified to act. It is believed, that no case can be found, which will justify the performance of a duty required of an aggregate body, by one only, as has been attempted here. Executors and administrators may act separately, in mere ministerial duties, in cases where the law will imply the sanction of the majority. Grindley v. Barker, 1 Bos. & Pul. 229. Green v. Miller, 6 Johns. R. 39. Patterson v. Leavitt, 4 Conn. R. 50. Neither the vote of the town directing the election of assessors resident in different districts, nor the usage of the assessors thus chosen, that each might act independently of his associates, in different sections, can give validity to this procedure. Assessors are the officers of the law, and must obey the law ; and no direction of the town, nor long continued usage, can justify a departure from the law. We would not intimate that every preliminary act of the assessors should be performed at an assembled board. There are various ministerial acts, which one may perform alone— such as distributing and setting up the legal notices, receiving the lists of individuals, viewing the estate to be valued and* equalized. But the statute contemplates but one assessment of the entire property to be valued in each town, and its final approval to be the joint act of the board of assessors and but one abstract of the whole to be returned by the board to the tows-clerk. To appraise or value the taxable estate [198] of individuals, is but a part of the assessors’ duty ; another equally important duty is required by the law — that of equalization. This requires a careful revision of the whole, by the board of assessors, and should be the result of its deliberate judgment. No system of taxation can be tolerable, or will be long submitted to, unless it be equal in its operation. And it is quite dear, that in cases like the present, where each assessor acts independently of his fellows, and confines his actions to property within fixed limits, there can be no equalization : each then adopts and carries out his own principles of valuation, with no certainty, and hardly a probability, that they will be adopted and acted upon by others, in all respects. In such cases, the relative estimate of value in the city and the country, in the village and away from it, may be very unlike. These views did not seem to be strongly denied by the plaintiffs ; but their effect was intended to be evaded, by the argument, that the town of Berlin could not be permitted to object to the legality of the tax assessed upon the pauper — - that the objection could come only from him. We think this suggestion has been already answered. To avoid the effect of the pauper’s residence in Middletown, it was incumbent upon the plaintiffs to show, that their own action had been legal, and that they had assessed a tax which the pauper was by law bound to pay. In examining the many confirming acts of the legislature, which the negligence of assessors and others concerned in the assessment of taxes, have annually made necessary, under our present system of taxation, we find none, which, upon any reasonable construction, can remedy the defects in this procedure. We are of opinion, therefore, that the decision of the superior court was correct; and that no new trial should be granted. In this opinion the other Judges concurred, except Stores, J., who gave no opinion, being interested as the owner of real estate in Middletown. New trial not to be granted.