Fifield v. Swett

FROM MERRIMACK CIRCUIT COURT. If signing the notice for the hearing of Oct. 26, 1872, had been a judicial act participation in that act by one who was disqualified by interest would probably invalidate it. But I think it was not an act of that description — Ashuelot Railroad v. Elliot, Cheshire Aug. T., 1874 — and that the notice was well enough; — besides, I see no reason to doubt that, if there had been a defect in the notice, it was cured by the appearance. School District v. Carr, 55 N.H. 452.

As to the objection that the tax was not seasonably assessed by the selectmen, I think the case does not show any ground upon which that objection can be sustained. It is argued that the word seasonably means during the political year within which the tax is voted. If the legislature had meant that, it is not easy to understand why they did not say it. The word, in its commonly received signification, certainly means no such thing. So far from fixing a precise and definite period within which the act must be done, the word naturally implies an exercise of judgment and discretion as to the time when it shall be done, having due regard to all the circumstances of the case; that is, it is to be done "in proper time." I think this objection must be overruled.

The other question in the case is one of greater difficulty and importance, but I have reached the conclusion that the tax was legally assessed. If a person should voluntarily move into a school-district, carrying his personal estate with him, after a vote had been passed to raise money for a legitimate purpose, but before the tax was assessed, and a new invoice had in the meantime been made, either with reference to that particular tax or upon the taking of the annual inventory of the town, there would be no doubt but such new comer would be liable to such school-district tax, although he was not an inhabitant of the district at the time of the vote. Now, the law provides a mode whereby the lines of a school-district may be changed so that persons and property not before situated in a given district may be involuntarily brought into it. If it had been thought just that a different rule should apply in the case of persons and property thus involuntarily brought within the territorial limits of a district from what applies in case of voluntary removals, it was easy for the legislature to make such provisions on the subject as might be thought just. In the absence of any such provisions, I see no good reason why the same rule should not apply in both cases.

So far as regards the equity of the thing, there is no substantial difference between this case and the case of one annexed against his will to a school-district which is already owing debts contracted before the annexation; and that this may be done, I suppose no one doubts.

It is to be presumed that the tribunal to whom is entrusted the power of changing the lines of school-districts will examine carefully into all the equities of each case; that the private rights and interests to be affected by their action, as well as the public convenience and welfare, will receive due consideration and regard; — and what it is to be presumed beforehand they will do, it is to be presumed afterwards they have done. In making the change they did here, it is to be presumed they did not act without knowledge of the fact that the plaintiff would be made liable to taxation for all legitimate purposes in the district to which they annexed him; that he would be compelled to pay all taxes that might thereafter be assessed against him in the same way as though he had moved into the district voluntarily; and it is to be presumed that, in view of all this, they were of opinion that, while the public good required the annexation, neither the legal nor political rights of the plaintiff would be invaded by their decision. I am of opinion that there should be judgment on the report for the defendants.

CUSHING, C. J., and SMITH, J., concurred.

Exceptions overruled.