Smith v. Dillingham , 4 Barb. 25 ( 1848 )

By the Court, Cady, P. J.

The principal question in the cause is, whether a district meeting can legally repeal a resolution imposing a tax after a tax list and warrant have been regularly made, and the greater part of the tax collected so as to render the trustees responsible for a subsequent renewal of the warrant. By 1 R. ¡S. 478, § 61, sub. 6, the inhabitants so entitled to vote when assembled in district meeting, shall have power to repeal, alter and modify their procceedings from time to time as occasion may require. No occasion can require, or even justify, the inhabitants of a district in doing an act of palpable injustice, as would be the repeal of a resolution imposing a tax after the greater part of it was collected, and thereby exempt some of the inhabitants from the payment of their just proportion of the taxes. The authority given to the inhabitants of a district to repeal, alter and modify their proceedings from time to time as occasion may require, never can be understood as giving them power to defeat the enactments of the legislature. The object of the seventy-sixth section, (1 R. S. 482,) is to compel the taxable inhabitants to pay in proportion to the value of their taxable property; but that object may always be defeated if a majority of voters who are liable to pay but one-fourth of the tax, can, after the other three-fourths of the tax is collected, repeal the resolution under which the tax was imposed. By the eighty-ninth section, page 484, the trustees are expressly authorized to renew the warrant against delinquent persons, as was done in this case. Can it be supposed that the legislature intended to give a delinquent majority of the voters the power to exempt themselves from taxation after the tax had been collected from the paying minority ? In the case of Gale v. Mead, (4 Hill, 109,) on which the counsel for the plaintiff in error seems to rely, Bronson, J. giving the opinion of the court says: “ As nothing beyond preparing a warrant and tax list had been done, under the resolution of the 7th October, the district was at liberty to rescind the vote to lay a taximplying that if a tax list and warrant had been put into the hands of a collector, and he had collected a part of the tax, the district could not have controlled it. The judgment of the court of common pleas is therefore affirmed.

Judgment affirmed.