Osgood v. Blake

Eastman, J. The questions raised by this case require the examination of a subject, which has always been watched with much jealousy. The power of taxation is one of the highest attributes of sovereignty, and affects the rights of the citizen as intimately as any other. It is also one upon which the existence of a government in a great measure depends; and while courts feel themselves bound to give no countenance to frivolous objections on the part of the tax-payer, and to render all proper aid in carrying out the laws, they are also called upon to see that the rights of the citizen are not improperly invaded, nor his property taken without provision of law. The annual town-meeting of Raymond, in 1844, was attempted to be called by that provision of the statute which enacts, that “ the selectmen may address their warrant to the inhabitants of the town, qualified to vote in town affairs; in which case they shall post up an attested copy of such warrant at the place of meeting, and a like copy at one other public place in the town, fifteen days before the day of meeting.” Rev. Stat. ch. 32, § 4. Two attested copies are to be posted up: one at the place of meeting, and one at some other public place in town. The evident object of the law is, to have the notices of the meeting made as public as circumstances reasonably require, that all who are interested in the subject-matters contained in the warrant may have the privilege of attending the meeting, if they see fit. The clause of the statute seems also to presuppose that the place of the meeting shall be a public one; for, in fixing upon the other place where the copy is to be posted, it speaks of some “ other public place.” In the case before us, it appears that one of the copies was posted upon the inside of the door of the meeting-house where the meeting was to be held ; that the door was then locked, and kept locked till the day of the meeting. Literally speaking, the statute was complied with by this manner of posting the copy, because the copy of the warrant was posted up at the place of meeting; but so far as the spirit of the act is to be regarded, or the inhabitants of the town were concerned, there might just as well have been no copy whatever posted up. To recognize such — 563 — a course of procedure as a compliance with the statute, would be adopting a principle that might lead to a complete usurpation of power, on the part of town officers and their friends. By the law," as it now stands, “ a town-meeting may be warned by the selectmen, when, in their opinion, there shall be occasion therefor.” Rev. Stat. ch. 32, § 1. And the inhabitants of the town may be notified of the meeting by a warrant addressed to them, and copies posted, as is provided in sec. 4, above quoted. Now if one- copy may be posted at the place of meeting on the inside of the door, and that kept locked, by the same principle the other copy may be posted at some other public place, on the inside of the door of some room, and that kept locked; and thus none would be informed of the meeting except the selectmen, and such particular friends as they chose to notify. In this way a secret meeting could be held, the old officers or their appointees elected, taxes could be voted, and yet the letter of the law be strictly complied with. It is not probable that such a state of things would long be tolerated without a revolution, nor is it by any means to be presumed that the selectmen contemplated any corrupt act by taking the course which they did; still a moment’s reflection will show, that to hold such a warning to be legal would be virtually overriding the statute, and might lead to the most mischievous of consequences. But theje is still another objection to the warning of this meeting. The copies of the warrant were not posted up in due season. The law requires that they be put up fifteen days before the day of meeting. Rev. Stat. ch. 32, § 4. And the day on which they are posted up is not to be reckoned in the computation ; for “ when time is to be reckoned from any day, date, act done, or the time of any act done, either by force of law, or by virtue of any contract hereafter made, such day, date, or the day when such act is done, shall not be included in such computation.” Rev. Stat. ch. 1, § 25. These copies were posted up on the Monday, two weeks before the Tuesday on which the meeting was to be held. Excluding the Monday, the day on which they were posted up, there remain but fourteen days before the day of meeting. In the case of the Graf — 564 — ton Bank v. Kimball et al., selectmen of Haverhill, decided about two years since, it is believed that this identical question was considered ; and that it was there decided that a warrant posted on Monday, two weeks preceding the Tuesday on which the meeting was to be held, was not in season, and that the doings of a meeting, held in pursuance of such a warrant, were .illegal. This meeting, then, which was held in Raymond, in March, 1844, was illegal and void. All the officers that were then chosen held their offices without authority of law; and no vote to raise money was binding upon the inhabitants of the town, or could be the proper and legal foundation for the assessment of any tax. Even should it be held that two of the selectmen were legally in office, by virtue of their election in 1848,— which question we shall not at this time stop to consider,' — 'the' difficulty is not obviated; because the vote to raise the money to defray the charges and expenses of the town, was entirely illegal, and, as a necessary consequence, the tax assessed upon it equally so, for the selectmen could not assess a tax to raise money illegally voted. Or if the selectmen could in any way be regarded as officers de facto, that would not relieve them. Officers de facto are sometimes protected in doing legal acts; but it has never been held that they could be justified in doing acts in themselves illegal. Even a collector de facto, notwithstanding the provisions of law in favor of that class of officers, is answerable for the value of property taken by him, when the tax has been illegally granted. Cavis v. Robertson, 9 N. H. Rep. 524. Without, therefore, entering into any discussion of the legality of the State, county, and school taxes, we must regard the tax assessed to defray the charges and expenses of the town for that year, as illegal and void. Have the defendants, then, any sufficient answer to this action ? It is said that the action cannot be maintained, because the plaintiff’s only remedy was by application for an abatement of his taxes; that the Revised Statutes have enlarged the powers of the selectmen and court in this respect, and given an adequate remedy in all cases. A careful comparison, however, of the act of 1827, with the provisions of the Revised Statutes — 565 — upon this subject, will, we apprehend, show that this opinion is founded in error. By the act of 1827, the selectmen were “ empowered to abate any taxes, as well those assessed by their •predecessors as by themselves, of any person applying for the same, provided sufficient reason for such abatement be shown.” N. H. Laws, (ed. 1830,) p. 559, §> 14. The provision of the Revised Statutes is in these words: “ Selectmen, for good cause shown, may abate any tax assessed by them or their predecessors.” Rev. Stat. ch. 44, § 1. Thus far, the statutes are in substance the same. There is no enlargement of the powers of the selectmen by the Revised Statutes. Both acts give them full power to abate in all cases, upon good cause being shown. The act of 1827, after giving this power to the selectmen, provides that, in case of their refusal to abate, application may be made to the Court of Common Pleas, “ who are empowered to make such order in the premises as justice may require ; ” provided the application be made within nine months after notice of the assessment; “ and provided, further, that the Court of Common Pleas shall not have power to abate any taxes, except as to such articles and matters as the selectmen, having the power of valuing, shall, in the judgment of said court, have overvalued, and as to sums set down by way of doomage for not giving an invoice, where the person doomed was unable to give an invoice.” N. H. Laws, above quoted.. This proviso, it will be observed, confines the application to the court to two classes of cases: first, where the selectmen, having the power to value the property, have overvalued it; and, second, where a person has been doomed for not giving an invoice, when, in fact, he was unable to give one. Let us now see how the matter stands upon the Revised Statutes. The provision for applying to the Common Pleas sets forth, that if the selectmen shall neglect or refuse to make the abatement desired, “ any person conceiving himself aggrieved, having first complied with the provisions contained in sec. 4, ch. 41, of this title, may, within nine months after notice of such tax and not afterwards, apply by petition to the Court of Oommon Pleas in the same county, who shall make such order thereon as justice shall require.” Rev. Stat. ch. 44, — 566 — § 2. The proviso of this section, it will be seen, Í3, that the applicant must have “ complied with the provisions contained in sec. 4, ch. 41.” This sec. 4, ch. 41, which is referred to, is as follows: “ All persons liable to be taxed in such town shall exhibit to the selectmen, at the time and place appointed by them, or upon such personal application, a true account of the polls and estate for which they are there taxable, either in their own right or otherwise, on oath, if required by either of the selectmen, which oath either of the selectmen may administer.” This section relates simply to the requisition upon the inhabitants to give in their inventories, and provides for the manner in which it shall be done. It embraces but one class of tax-payers, — those who give in their inventories. And hence, by the second section of chapter 44, can those only who have given in their inventories apply to the Court of Common Pleas for an abatement. All others are excluded from the right; and those who are doomed, whether rightfully or wrongfully, have no remedy for an abatement beyond the will of the selectmen. The power of the court, then, is not coextensive with that of the selectmen, nor do the Revised Statutes provide an adequate remedy for all errors in the assessment of taxes. And it is at least a debatable matter, whether, in fact, the jurisdiction of the court upon this subject has not been abridged, instead of enlarged, by the operation of the Revised Statutes. Probably this plaintiff was doomed. Whether he applied to the selectmen or not for an abatement does not appear. It is not probable that he did, and if he had, it is equally probable that he would not have succeeded ; as there is no suggestion that his taxes, when compared with other citizens of the town, were disproportionate to his property. The Revised Statutes give him no power of appeal to the court, and his taxes could not, therefore, be abated. He would then have no remedy against an illegal and void tax, unless he could institute a suit against the selectmen. This he could do; for where the court have no authority to order an abatement of taxes, a party is not remediless, and if he has been illegally taxed he can obtain redress by an action. State v. Thompson, 2 N. H. Rep. 238; Walker v. Cochran et al. 8 N. H. Rep. 166, 171. — 567 — But there is another brief but full reply to this position. This tax was entirely illegal and void ; and there is no requirement of law that compels a person to apply for an abatement of a tax that is assessed without authority of law, and void. It is further contended, that inasmuch as the warrant contained assessments for the State, county, and school taxes, in addition to the sum raised for town purposes, it can be regarded as several warrants, some of which are legal, and some illegal; and this view of the subject is attempted to be sustained upon the authority of Brackett v. Whidden, 3 N. H. Rep. 17. It also goes upon the assumption that the two selectmen of 1843 could hold over during 1844, and consequently assess those taxes that did not require any special action of the town. In Brackett v. Whidden it is said, that “ a warrant authorizing a collector to collect several taxes, separately assessed, may be considered as several warrants to collect the several taxes respectively,” so that the warrant may be good for some purposes, and bad as to others; and this is the doctrine relied upon by the defendants to sustain them in this position. But it is further said in the same case, that although an arrest may be justified by virtue of the legal warrant, if nothing more be done, yet, if the person arrested be detained a moment by virtue of the illegal warrant, it is a trespass. This decision, then, so far from sustaining the views of the defendants, is a direct authority for the plaintiff upon the facts presented in this case, for here the plaintiff was detained in custody until he paid the whole tax assessed for all purposes, and the costs of his arrest. We think it clear that the defendants fail upon this point. Another position taken by the defendant is, that the plaintiff has misconceived his form of action, and that he should have brought case and not trespass. Prior to the passage of the Revised Statutes in 1842, this question came under the consideration of the Court several times, and might then be considered as settled. It was held that the party had his option to treat the wrongful assessment as the injury, and declare in case, or to treat the seizure of his property or the arrest of his person as the ground of action, and declare in — 568 — trespass. Walker v. Cochran & al. 8 N. H. Rep. 166; Henry v. Sargent & al. 13 N. H. Rep. 321. In the case of Henry v. Sargent & al. the suit was instituted against the defendants as selectmen. The plaintiff had been arrested and imprisoned, and subsequently paid the tax. Case was brought for the illegal assessment of the tax, and the exception was taken, that the action should have been trespass and not case. The Court held that the plaintiff had his election; that he might regard the wrongful assessment as the cause of the injury, and declare in case, or he might treat the arrest by the collector as the act of the selectmen, and declare in trespass. But, it is contended that the Revised Statutes have changed the form of the remedy in actions of this kind, and that case is the only legal form to be adopted. The statute provides, that “ an action on the case and no other shall be commenced against any sheriff, deputy-sheriff, coroner, or other officer, for any damages arising from any default or misconduct in his office.” Rev. Stat. ch. 180, § 12. Probably the occasion of this statute arose out of the hardships that frequently befell sheriffs and their deputies, on account of actions of debt being brought against them, for escapes on final process, and other defaults where the action of debt was held to lie. By the common law, if a sheriff or other officer, undertaking to execute final process by arrest, should suffer an escape, or should neglect to make an arrest when the defendant was within his precinct, he was liable to an action of debt to the full amount of the original judgment, and was not permitted, as in the action of case, to go into any evidence of the situation and circumstances of the defendant in mitigation of damages: 2 W. Bl. 1048; 2 Term Rep. 126; 2 Johns. 454; 6 Johns. 271; 2 Chit. Rep. 454. The fact that none but executive officers are specified in the section, would seem to indicate the object which the legislature had in view; that it was to leave open to the investigation of a jury all actions brought against such officers for any official default or misconduct. It could not be intended to shield them from illegal acts, which should be committed by them without process, or with void process. Thus in the case of Hills v. Hoyt, — 569 — (Strafford, December term, 1846,) it was held, that an action of trespass might be brought against a sheriff for taking property not the debtor’s. The taking of the property was an act done in his official capacity, but it was with no authority against the individual whose property was taken. It was not a default or misconduct within his office, but an illegal act without the sphere of his office. Whether this section of the statute is broad enough to include all officers not executive, and consequently selectmen of towns, it is not necessary here to decide ; inasmuch as these defendants, having assessed an illegal tax, and issued an illegal and void warrant, come within the spirit of the decision in Hills v. Hoyt, the principle of which was carried out at the December term, 1849, in Belknap county, in the case of Perley v. Parker & als., selectmen of Meredith. In that action trespass was brought, and the exception taken that it should have been case; the defendants relying upon the same clause of the statute that is made the foundation for the exception in this action. The Court held that trespass was a proper form of action, if the plaintiff chose to adopt it. The question there settled is believed to be precisely like the one raised here. But the defendants further contend, that if they are liable at all in this action, it can be only for nominal damages, as the plaintiff has paid only his fair proportion of the taxes of that year. It may be true, that he has paid no more than his due proportion of the State, county, and school taxes, and so far the argument might perhaps hold good. But he has also, to gain his liberty, paid several dollars that were illegally assessed upon him, in pursuance of an illegal and void vote of the town. It cannot be held that where taxes are from their foundation illegal, that any payment by others can justify the arrest and imprisonment of an individual, because he declines to pay his fair proportion of such taxes. That is not the doctrine of Cavis v. Robertson, 9 N. H. Rep. 524, which is cited by the defendants. In that case, the defect consisted in the tax having been collected by the defendant, who was chosen collector and gave bond, but who had not taken the oath of office as prescribed by statute. He was collector de facto, but not de jure, and the — 570 — Court held, that inasmuch as the plaintiff had done no more than pay his legal tax, his damages against the collector ought to be nominal only. But it is expressly stated in the same case, that if the tax had been illegally assessed, the defendant would have been liable for the value of the property taken. Nor is the defendant’s position sustained by the decision of Henry v. Sargent & a., 13 N. H. Rep. 342, which is also cited by the defendants. A qucere is there suggested upon certain facts, which are not parallel with those in this case, and consequently can have no bearing upon its decision. If we should decide that the two selectmen of 1843 could hold over and legally act during 1844, the defendants might, perhaps, on trial before a jury, give in evidence the amount of the State, county, and school taxes, in reduction of damages. The, case, however, does not come before us upon ];he finding of a jury, but upon an agreed state of facts; and upon the further 'agreement, that judgment shall be entered for the plaintiff for the sum’of $16.41 and interest, or for nominal damages ; or for the defendants generally, according to the opinion of the Court upon the case. Holding that the action can be sustained, and that the defendants are liable for more than nominal damages, judgment must therefore be entered for the plaintiff, according to the agreement, for the sum of $16.41 and interest. Henry v. Sargeant & a. 13 N. H. Rep. 342. Judgment for the plaintiff.