Gale v. Mead — 4 Hill & Den. 109

Majority

p. 109

Gale vs. Mead and others.

Headnote

’The unqualified repeal of a repealing statute revives the original enactment. Per Bronson, J.

Where a resolution of the taxable inhabitants of a school district to lay a tax for building a school house, is repealed at a subsequent meeting, and afterward the repealing resolution is itself repealed, this revives the original resolution. Per Bronson, J.

In such case, however, the original resolution being rendered operative only from the time of the vote which revived it, a tax list prepared under it prior to the second meeting cannot be used for the purpose of collecting the tax; though otherwise, semble, of a warrant prepared at the same time, if renewed after the third meeting so as to be equivalent to new process.

Trover for a horse, tried at the Monroe circuit, in April, 1842, before Dayton, C. Judge. The three defendants were

p. 110

trustees of school district No. 3 in Clarkson. At the annual meeting of the taxable inhabitants of the district on the 7th of October, 1839, a tax of $300 was voted to build a new school house. On the 1st of November following, the trustees prepared the proper assessment or tax list, in which the plaintiff’s tax -was fixed at $60,19 ; and on the 21st day of that month the trustees made out their warrant in the usual form for collecting the tax. At a district meeting, held on the 25th day of the same month, a vote was passed repealing the vote for a tax which had been passed on the 7th of October. On the 5th of December following another district meeting was held, at which a vote was passed repealing the vote of the 25th of November Avhich had repealed the vote for a tax. And thereupon the trustees, on the 23d day of December, renewed the warrant Avhich had previously been made out,-and delivered it with the tax list annexed to the collector, who, by virtue of the warrant, took and sold the plaintiff’s horse to satisfy his tax; and for that taking this action was brought. The judge decided that, although he was of opinion the vote of the 5th of December repealing the vote of the 25th of November restored the original vote to raise $300 passed at the annual meeting, yet that it was so restored only as a tax of that amount voted for the first time on the 5th of December, and that all

the proceedings had under the vote at the annual meeting were void. That the trustees were bound after the vote of the 5th of December to go on and make a new assessment of the tax, and proceed in all respects as though that was the first vote which had been passed to raise money ; and not having done so, the warrant was void and formed no justification to the defendants. The defendants excepted, and the jury gave their verdict for the plaintiff. The defendants now moved for a new trial on a bill of exceptions.

H. R. Selden, for the defendants.

A. Gardiner, for the plaintiff.

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By the' Court,

The taxable inhabitants of a school district, when duly assembled, are invested with several legislative powers in relation to the affairs of the district; and, among others, they have the power to lay a tax for building a new school house. They are also authorized “ to repeal, alter and modify their proceedings from time to time as occasion may require.” (1 R. S. 478, § 61.) As] nothing beyond preparing a warrant and tax list had been done under the resolution of the 7th of October, the district wTas at liberty to rescind the vote to lay a tax, as they did at. the meeting of the 25 th of November. But on the 5th of December, the repealing vote was itself repealed. This revived or renewed the original vote to lay a tax. The unqualified repeal of a repealing statute revives the original enactment. (Case of the Bishops, 12 Co. 7 ; 2 Inst. 686 ; Wheeler v. Roberts, 7 Cowen, 536; Commonwealth v. Churchill, 2 Met. 118 .) I see no reason why that rule should not apply here, as well as to legislation on a larger scale. There was, then,"the necessary vote to lay a tax at the time the warrant was delivered to the collector on the 23d of December.

But there is still a difficulty in sustaining the defence. Although the vote to lay a tax was revived or renewed on the 5th of December, I do not see how the vote of that day could have any retroactive effect. The warrant and tax list which had previously been made out, fell to the ground when the original vote was rescinded on the 25th of November, and the subsequent renewal of the vote could not resuscitate the former proceedings under it. The trustees should have begun de novo after the 5th of December. But instead of doing so, they subjoined a renewal to the warrant, and delivered it with the tax list to the collector.

As the warrant had never been issued before, there could not strictly be a renewal of it, within the meaning of the statute. (1 R. S. 484, § 89.) Still, the renewal under the hands and seals of the trustees on the 23d of December may perhaps be regarded as making it new process of that date. (Smith v.

p. 112

Randall, 3 Hill, 495 .) And, in this view of the case, the warrant may be well enough. But I see no way in which the difficulty in relation to the tax list can be got over. The statute provides, that every district tax shall be assessed and the tax list thereof be made out by the trustees within one month after the tax is voted. (1 R. S. 483, § 82.) This tax was assessed and the tax list made out before the tax was voted. The list was completed on the first of November, more than a month before the vote of the 5 th of December. But the length of time is not very material. The assessment and tax list should have followed the vote. There may have been great changes in the taxable persons and property in the district between the time when the list was made, and the time when it should have been prepared. But whether so or not, this entire departure from the statute cannot be supported.

New trial denied,