City of Keene v. Cheshire County
| Decision Date | 01 April 1919 |
| Citation | 106 A. 486 |
| Parties | CITY OF KEENE et al. v. CHESHIRE COUNTY et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Cheshire County; Marble, Judge.
Petition by the City of Keene and others against the County of Cheshire and others. Transferred from the superior court without ruling. Petition dismissed.
Petition alleging that through error of the county treasurer in issuing his warrants for the assessment and collection of the county tax in the years 1911, 1912, 1913, 1914, and 1915, certain towns in the county, all but two of whom joined as plaintiff, assessed, collected, and paid to the treasurer of the county more that their just proportion of county taxes in said years, said sums being assessed, collected, and paid in accordance with the county treasurer's erroneous warrants, while the remaining towns, all of whom are joined as defendants paid less in the same amount through a similar assessment, collection, and payment of the county tax.
The prayer of the petition is that the defendant towns be required to pay into the treasury of the county the amounts which they have severally underpaid during the six years, and that the county be ordered to pay to the petitioners the amount of their several overpayments.
Transferred upon the defendants' demurrers, without a ruling, from the April term, 1918, of the superior court.
William H. Watson and Joseph Madden, both of Keene, for petitioners.
Roy M. Pickard, of Keene, for the county.
Charles H. Hersey, of Keene, for Hinsdale, Jaffrey, Roxbury, and Troy.
Richard J. Wolfe, of Keene, for Town of Nelson.
Philip H. Faulkner, of Keene, and Streeter, Demond, Woodworth & Sulloway, of Concord, for Dublin, Fitzwilliam, Harrisville, Richmond, Sullivan, Walpole, and Winchester.
PARSONS, C. J. "An apportionment of public taxes according to the valuations of the polls and ratable estates in the several towns shall be made by the Legislature at its January session, eighteen hundred and ninety-five, and in every fourth year thereafter." P. S. c. 14, § 1. This statute binding merely as a declaration of policy was followed by apportionment acts in 1903, c. 108; 1907, c. 2; 1911, c. 41; 1913, c. 100. By the act of 1903, Cheshire county was called upon for $73.84 of each $1,000 of the state tax. Of this $27.07 was required of the city of Keene. By the act of 1913, taking that year only for example, the proportion of Cheshire county was $69.79, and Keene's share $23.40.
"The county treasurer shall issue his warrant to the selectmen of the several towns in the county liable to pay state taxes, requiring them to assess, collect, and pay to the treasurer of the county, within such time as shall be therein directed, their just proportion of all taxes granted by the county convention, according to their proportion of public taxes for the time being." P. S. c. 28, § 8.
The complaint is that the county treasurer for the years in question distributed the county tax between the towns in the county according to the proportions of the act of 1903, c. 108, instead of according to "their proportion of public taxes for the time being." The proportion of Keene under the act of 1903 was 2707/7384 while by the act of 1913 it was only 2340/6979. By the error the warrants issued to the selectmen of the petitioning towns were as much too large as those to the towns made defendant were too small.
Whether the county taxes in the year complained of were legally assessed, collected, and paid over by the public officers upon whom that duty is imposed by law (P. S. c. 59, §§ 2, 6, 7; Laws 1903, c. 111, § 1), or without authority (Canaan v. District, 74 N. H. 517, 535-537, 70 Atl. 250) by the towns, as alleged in the petition, in the absence of any allegation that anything was paid into the county treasury except what was collected on account of the county tax, it is clear the only persons injured by the alleged error of the county treasurer are the individual taxpayers in the several towns who paid more in county taxes than they were legally required to pay.
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