Odiorne v. Rand , 59 N.H. 504 ( 1880 )

Foss was de facto collector, and his authority cannot be inquired into collaterally. Morse v. Calley, 5 N.H. 222; Tucker v. Aiken, 7 N.H. 115; Lisbon v. Bow, 10 N.H. 167; Merrill v. Palmer, 13 N.H. 184; Baker v. Shephard, 24 N.H. 208; Tyler v. Flanders, 58 N.H. 371.

The vote of the town, fairly considered, was to raise $2,000 to be expended on highways, the tax to be paid in money. The vote that it be collected by the surveyors, unless it can be construed as a vote authorizing the surveyors to receive the money from the treasurer, on which we express no opinion, was void. The town could not direct who should collect the money of the tax-payer, for that duty, by statute, belonged to the collector. G. L., c. 72, s. 22. But if the assessment of the highway tax was illegal, the remedy for the illegality is not by an action against the assessors for damages. Edes v. Boardman,58 N.H. 580.

The fact that the selectmen were not sworn as assessors was immaterial. As selectmen, they were sworn to the faithful discharge of all the duties of their office. A part of these duties was, in case the town neglected for any cause to choose assessors, to assess the taxes. These duties were as fully covered by their oath as any other duty of their office. The fact that the town voted that the selectmen act as assessors was, in legal effect, a vote not to choose assessors.

The provision of law requiring the invoice and assessment to be sworn to is directory merely, and a failure to comply with it did not vitiate the assessment previously made. Smith v. Bradley, 20 N.H. 117; Scammon v. Scammon, 28 N.H. 419, 430, Converse v. Porter, 45 N.H. 385, 399. The plaintiff rests this exception on the decision in Cardigan v. Page,6 N.H. 182; but if that case, in relation to non-resident taxes, is in point, it is overruled by Smith v. Bradley and Scammon v. Scammon, supra.

The tax was due as soon as the warrant was placed in the collector's hands, and this might be done immediately after the taxes were assessed, while the statute does not require the oath to be taken until the copy of the invoice and assessment is filed with the town-clerk, and this may be at any time prior to the first day of July following the assessment. G. L., c. 56, s. 6; c. 57, s. 6. It is obvious from these provisions of the statutes that the legislature did not regard the taking of the oath as mandatory.

Exceptions overruled.

CLARK, J., did not sit: the others concurred.