Alger v. Curry

The opinion of the court was delivered by Steele, J. The first issue is upon the validity of the tax. At the annual town meeting holden March 3d, 1863, this tax was voted. By the same vote the selectmen were directed to assess the tax upon the grand list of 1862. It was so assessed. The bill and warrant upon the tax so assessed constitute the process upon which the defendant acted. The statute — Gen. Stat. ch. 84, §§ 66-7 — provides that “ all taxes voted at the annual March meeting of any town shall be assessed upon the grand list to be completed for. that purpose on the 15th of May following,” and all other town taxes voted before the next March meeting, as well as the highway, school district and village taxes shall be assessed upon said list. The terms of the statute could not well be more comprehensive, explicit or imperative. This tax was not assessed upon the list of the May following, but upon [386] the list of the preceding year, and was therefore unwarranted by law and invalid. It is urged that the proceedings of the town meeting of March, 1863, under article 11 of the warning, are to be construed with the proceedings under article 10, and amount to a vote to legalize forty-two per cent, of the tax of 1862, and not to a vote to authorize a new tax. But- such a construction would not help the defendant, because he distrained the property by virtue of a new tax bill and warrant, founded upon a new tax, and, if the vote was merely to legalize an old tax, this new tax and the proceedings thereon were not authorized by any vote at all. Whether the tax voted in August, 1862, was lawful at the outset, and, if not, whether it could be made so by a subsequent vote of the town, under the act of 1862, and whether the other objections to the justification are well founded, are questions not necessarily involved in a determination of this case, and are not decided. The taking of the horse being a trespass there can be left no doubt but the taking of the halter to lead him away was equally unlawful. The defendant moves in arrest of judgment because counts in trespass and trover are joined. The statute provides that they may be joined “if for the same cause of action.” No question is made but they were for the same cause of action. The declaration contains no special allegation that such is the case, but it has not been the practice under this statute to require such an averment. The motion was properly overruled. The judgment of the county court is affirmed.