Neal v. Lewis , 46 N.H. 276 ( 1865 )

Bellows, J.

The case turns upon the construction of the law of July 4, 1861, Pamphlet Laws, ch. 2507, which provides that towns may be divided into school districts and their limits defined, and from time to time altered as convenience may require, by vote of .the town; "provided that no alteration of existing districts shall be made without previous written recommendation of the superintending school committee and selectmen of the town, which shall also be recorded.”

It is urged by the defendant’s counsel that this recommendation is not necessary where the town is districted anew, and all the districts altered, as in this case. The terms, however, are explicit "that no alteration of existing districts shall be made” without such recommendation, and we see nothing to limit its application to cases where some number of the districts less than the whole are altered.

The object of the law was to prevent the hasty and improvident alteration of existing districts, upon the application of interested parties, and although this may be less likely to happen where ail the districts are altered at the same time, yet we see nothing in the law that suggests such a distinction, and we are of the opinion that no such distinction can be made.

The question then arises, whether the recommendation required shall specify the alterations to be made, and whether the town can make no other.

In this case the town voted that the selectmen be a committee to redistrict the town and report at the next annual .meeting of the superintending school committee, and the selectmen in writing recommended an alteration in the boundaries of the several school districts agreeably to this vote of the town, and there is nothing connecting it with the report of the selectmen as a committee, except that the recommendations were made on the day the report was made, and apparently afterwards, but before any action upon it.

If this could be regarded as a recommendation to make the alterations reported, it would have been sufficient if no changes from the report had been made by the town, but such changes were made in eight of the districts, and in respect to those changes there was no recommendation by those officers.

If these recommendations are to be regarded simply as advising the town to do what was proposed by its vote, it was, as we think, clearly insufficient; for it was clearly contemplated by the law that these officers should consider and approve the alterations that were proposed to be made — not that they should consent that the town should make such as it deemed expedient, for this duty was one that they themselves must perform, and could not be delegated to the town or any other tribunal, any more than the town can delegate to another its authority to make or alter such districts.

It follows then, we think, that the action of the selectmen and superintending school committee must be had, previously to the vote of the town, directly upon the expediency of the proposed alterations.

This, it is quite clear, has not been had in respect to those changes that were affected by amending the report of the committee. On the contrary, those changes must be regarded as in opposition to the views of the selectmen, when acting as a committee of the town; and in no sense can we find that they recommended them.

The case before us affords an illustration of the liability to act hastily in such matters, and with only a partial view of the subject, against which the law under consideration was designed to guard; for it will be perceived that in the midst of the numerous amendments that were made to the report of the committee, one of the districts, numbered seven, was so far changed from the report of the committee as to have but one farm and a single voter.

That district as thus constituted, and district numbered three, also altered from the report of the committee by disannexing eight farms from it, had undertaken to unite by a two-thirds vote of each district, for the purpose of schooling, and to build a school house for their joint accommodation ; the money was voted, for the assessment of which upon the plaintiff, among others this action is brought. As neither district was legally constituted, the vote to raise the money was invalid, and the plaintiff was not rightfully assessed.

It is urged that the plaintiff cannot recover the money paid by him to redeem the land sold for this tax, because, if the tax was illegal, the sale was a mere nullity, and a payment to redeem it must be regarded as voluntary. We think, however, that if this has been an illegal assessment, and the plaintiff has been compelled to pay it by' a seizure of his property, or his person, he may maintain an action on' the case for the illegal assessment, or, at his election, an action of trespass for the arrest or seizure. Such is the doctrines of Walker v. Cochran, 8 N. H. 166, and Perry v. Buss, 15 N. H. 222.

Nor would it be any answer to say, that, as. the assessment was Void, the party might wholly' disregard it, and act as he would if none had been made, because the payment of such tax to release one’s person or property from seizure, would be a prudent and reasonable act, and it would not be in the assessor’s mouth to say that he paid it in his own wrong, or that it was merely voluntary, when the tax had been committed to the collector with the assessor’s warrant to be collected.

Upon these views there must be judgment for the plaintiff for the amount paid by the plaintiff to redeem his land, with interest, unless the defendants elect a trial by jury.

Judgment for plaintiff.