I am also constrained to dissent from the opinion delivered by the Chief Justice, and concurred in by a majority of the court.
The case is stated, and the ground of the plaintiff's claim fully disclosed, in the plea in bar.
The question arises upon the construction of the 18th section of the statute respecting “ The collection and payment of rates or taxes.” That section is, “ That for all warrants to be issued by the treasurer of this state, for the collecting of taxes, there shall be allowed to the several towns in this state, an abatement of one eighth part of the true list of said towns respectively ; which eighth part the civil authority and select-men of the respective towns are hereby empowered to apply for the relief of the indigent in the abatement of their particular rates, in whole or in part, in such way and manner as they shall judge most proper, just and reasonable ; and that no other or further abatements shall be allowed in settlement of said taxes with the treasurer to the respective towns or collectors.”
The 16th section says, “ That the several towns in this state shall be chargeable for the full amount of the state tax that may be granted by the General Assembly ; and the treasurer of this state shall not allow any bills of abatement for any part of such rates, save only such as are expressly mentioned to be allowed, and are certified conformable to the direction given in the law of this state, entitled " An act for the direction of listers in their office and duty.” This statute was first passed in May 1765, and still continues with some small modifications. It describes the subjects, but does not limit the quantum of abatement, nor time of extension. It adds, “ that in every bill of abatement shall be certified the reason of such abatement by the persons who have a right by law to make the same.” Inconveniencies in practice on the statute of 1765 were experienced, and not improbably suspicions arose of its abuse. Those considerations doubtless gave rise to the modification of the present statute, which *466says, “ that on all warrants there shall be allowed to the several towns an abatement of one eighth part of the true list” &c. Here is a limitation of the power of abatement. The apportionment and distribution are still left to the discretion of the civil authority and select-men of the respective towns ; they are to apply this eighth “ for the relief of the indigent in the abatement of their particular rates, in whole or in part, in such way and manner as they shall judge most proper, just and reasonable.”
The expression “ there shall be allowed to the several towns an abatement of one eighth” must be taken according to the subject matter. As explained and qualified in the direction of the disposition, we are to understand not an allowance of that portion of the state tax to the town as a body corporate, but to the poor and indigent, who may be subjects of abatement. This allowance is in no sense a gift to the town of the one eighth, but a remission of that amount to the poor and indigent ; and the civil authority or selectmen are made almoners of the bounty. By the word “ empowered" they are not only authorized, but commanded. It is, in statute language, imperative. It is their duty to apply this eighth among the fittest objects they can find in their respective towns ; to abate to the poor and indigent their rates, in whole or in part, until the eighth is absorbed. Because a man can possibly pay his taxes, it does not follow that he is not a subject of this allowance. Rich and poor are relative terms.
By the 16th section of the existing statute, we find that the treasurer can make no allowance of abatement, unless there be a certificate ; and by the reference there made, we further find by whom that certificate shall be given, by the persons who have right by law to make the abatement; and who they are the 18th section informs us ; the civil authority and select-men of the respective towns. What then shall entitle a town to the allowance of this eighth part ? A certificate of the truth from the civil authority and select-men, that they have applied the one eighth for the relief of the indigent in the abatement of their taxes. This is the only currency that will pass at the treasury in discharge of this eighth part.
It appears to me, that a different principle and practice would be repugnant not only to the spirit, but to the letter *467of the law. It may be that every man in a town can possibly pay his tax. The civil authority and select-men, to avail themselves of the eighth, certify as matter of form, that they have applied it for the relief of the indigent in the abatement of their respective taxes ; and proceed to the collection of the whole, and put “ this eighth” into their treasury. The consequence is obvious ; this allowance for the poor is, by a falsehood, converted into a bounty for the rich, who are so far eased of the burthen of supporting the poor, and of other expenses of the town. This, to my mind, would be an abuse and manifest misconstruction of the law.
Gould, J.I should certainly conclude, from the general scope, and what appears to me the reasonable construction, of the statute, that the original intention of the legislature was, not to grant any part of the state tax to the respective towns, in any event ; but merely, to permit them to make a deduction of one eighth of it, by abating the taxes of the indigent, to that amount, and in no other way. And according to this construction, the note in question, would, doubtless, he illegal and void. But, as the words of the act may be made to bear the opposite interpretation, and have practically received it, as I believe, by a usage of considerable extent, which cannot have escaped the notice of the legislature ; I am not inclined, upon the whole, to dissent from the opinion, in which a majority of the court has concurred.
Judgment to be rendered for the plaintiff.