Sherwin v. Bugbee , 16 Vt. 439 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

The first question made in this case, in regard to the division of the town of Windham into school districts, cannot, I apprehend, at this day, admit of much doubt. The same rule which is applied to this district will apply, of course, to all the other districts in the town. It is now well settled in this state, notwithstanding the decisions reported to the contrary, that the mere fact of a school district maintaining its existence and operation for a great number of years, say fifteen, is sufficient evidence of its regular organization. The same rule of presumption must be applied to the subdivision of the town into districts. In addition to the fact of the lapse of time, and of the acquiescence of the town and the inhabitants of the territory, now claimed as a school-district, in the acts of the corporation, we have the proceedings of the -.town in 1796, preparatory to a division of the town into school districts,— although there was no vote constituting an actual division, — and the immediate organization of -the several school districts, this among the rest, and the express vote of the town in 1839, recognizing this as a “late school district.” To say, then, that, under these circumstances, any doubt can -exist of the sufficiency of ¡the -proof upon this point would be to set at defiance the whole doctrine of presumptions, as applied to this subject. Dillingham v. Snow, 5 Mass. 547.

2. There can be no good ground of doubt of the correctness of the proceedings of the county court, in receiving proof of-the loss of the records of the school district ‘before 1821; and, as the proof of the loss is not detailed in the bill of exceptions, no question arises in regard to its sufficiency. The loss of the records being shown, no other evidence remained of the proceedings of the school district, except that of witnesses upon the stand. Whether this would be sufficient for all purposes, it is not necessary to determine; it clearly was sufficient to show the continued existence of the district, and very likely would have been sufficient for that purpose without showing the loss of the records.

3. There does not seem any good ground of objection to the reorganization. The suspension of all the functions of the corporation for so long a term as ten years would seem a sufficient reason why there should be a new organization ; but it would not necessarily be conclusive evidence of a dissolution of the corporation. And, as the town saw fit to aid in the re-organization, there can be now no ground for the town to claim that the corporation had become extinct.

4. The organization in 1839 seems regular. It has not been customary to state in the warrants for school meetings, or in the record, that such meetings were warned upon the application of the required number of freeholders; omnia rite acta is the maxim applied to this and all similar subjects.

5. We do not well see how the meeting, at which the tax was voted, can be considered legal. It was warned to be holden on a particular day, but no time in the day was specified. The statute upon the subject requires that the notice shall be in writing, and sball “ specify the business to be done, and the time and place of holding said meeting.” It has been decided that such meeting is void for all purposes of transacting business not specified. Hunt v. School Dist. in Norwich, 14 Vt. 300. We have no doubt the place of holding the meeting must be definitely specified. It would hardly do to warn a meeting to be held at some place in the district, or at a designated village, or at one of two or more dwelling houses. So, too, in regard to time, there seems to be a propriety in having it definitely fixed. If the day, only, is named, the question immediately arises, shall the inhabitants be required to attend the whole day ? or when can the meeting transact the business for which they meet, so as to bind the absent members 1 In addition to these considerations, the uniform practice under this and similar statutes for fifty years is a matter of no slight weight in fixing the construction of a statute. Any rule, too, that we might here adopt in regard to this subject might, with equal propriety, be extended to all meetings of municipal corporations, when the statute upon the subject is general. These considerations induce us to say, that the proceedings of this meeting cannot be considered legal. We think the fact, that the meeting adjourned to another day and hour, will not help the matter, on the obvious principle that the adjourned meeting could have no more authority than the original meeting, which was void. To argue the contrary would be to suppose that additional momentum might be acquired without the application of new force. This so far determines the case that there does not seem any necessity of examining the other points.

But two matters, which have been discussed at the bar, seeming to be of some practical importance, we will report our determination concerning them.

1. It seems to have been supposed that it was necessary for a school district collector to advertise property within his district. But I cannot see why the statute does not determine this. The Revised Statutes, page 376, section 26, provide that the collectors of all municipal corporations “ shall have the same power in all things, and proceed in the same manner,” as constables do in the collection of state taxes. On page 373, section 7, it is provided, that constables shall advertise property “ in some public place in the town in which it was taken.” On page 374, section 14, it is provided that the constable, or collector of any tax, shall have power to collect the same in any place in the state.” This would seem to settle the question, unless we restrict the power of school district collectors beyond the words of the statute, — which no court would be inclined to do, without some very sufficient reason, which does not seem to exist in the present case.

2. In regard to the right of distraining beasts of the plough, there are two reasons, which to us seem sufficient, why no such exemption was intended in this state.

1. The statute expressly exempts from distress for taxes such arms and accoutrements ” as it is the duty of such person to keep. This, by fair implication, will make all other property liable to the distress, upon the well known maxim that expressio unius ex~ clusio alterius est, et vice versa.

2. Our distress for taxes is not like distress in England. At common law, as I understand the subject, distress was in the nature of a pledge merely, and could not be sold at all. It was a right originally exercised by the feudal landlords, to compel those various services which that species of tenure required from the tenant. At common law, and in early times, this right of redress by one’s own act was very much abused by the landlords, to the great oppression of the tenants. Many ancient statutes were passed regulating the right of distress; and the modern right of distress for rent, which naturally grew out of the former, is almost altogether the creature of various English statutes. It is only in this particular species of distress, that this exception of beasts of the plough obtains, even in England. Co. Lit., 47 a b, Thomas’ Ed., vol. 3, p. 210 at top, and notes. Distress for poor rates, it is admitted upon all hands, never allowed any such exception. Hutchins v. Chambers, 1 Burr. 579. And the exception never extended to cattle taken damage feasant, or to enforce amercements. Comyn’s Dig., Distress B 4. Smith v. Sheppard, Cro. Eliz. 710.

But the true reason, why no such exception, as is claimed, obtains here, is found in the fact that the distress for taxes is “ in the nature of an execution.” In ancient times, when the distress was to be kept indefinitely, until the debt was paid, or the service performed, and the party aggrieved was his own avenger, there were obvious reasons why so many exceptions were provided. There is one exception from the taking of cattle damage feasant, that is, when the owner is with his cattle, leading, or riding, or perhaps driving them, which still obtains, — and this to avoid breach of the peace.

Judgment reversed, and case remanded.