School District No. 8 v. Perkins , 49 N.H. 538 ( 1870 )

Nesmith, J.

—Our authority to issue the writ, as demanded by the petitioners, is defined by statute law, Gen. Stats, chap. 189, § 1. “ The supreme court has power “to issue writs of mandamus &c., for the furtherance of justice, and the due administration of the laws.”

The authorities say, that this writ ought to be granted upon all occasions, when the law has established no specific remedy already, and when in justice, and good government there ought to be one. Rex v. Barber, 3 Burrow 1267 ; Hall v. The Selectmen of Somersworth, 39 N. H. 517. As a general rule, courts of law will not exercise the extraordinary power of issuing the writ of mandamus to effect purposes, which may be as well obtained by the ordinary legal remedies. Accordingly, to obtain relief by this process, the applicant must not only show a specific legal right, but there must not be any other remedy adequate to enforce that right. Ang. & Ames on Corp. 444 and note. The right to demand this writ must be complete in the applicant, and there of course should be a corresponding obligation on the defendant to submit to it.

It may be admitted under the proofs furnished in this case, that there was a school district in Sunapee, well known as District No. 8, and that in 1867, for a time the said Perkins was then the acting town collector of taxes, under his appointment from the selectmen of Sunapee, and that the selectmen for that year did commit to the defendant, as collecter of taxes the lists of taxes, as alleged in the complainant’s petition, and that the collector for some reason failed to collect a certain portion of the taxes, known as the school-house tax, embraced in his list as committed to him, and in which the petitioner had a direct pecuniary interest. It may be also assumed, that there was a legal board of selectmen chosen, and a town treasurer legally appointed in Sunapee for the year 1867, and that said defendant as collector of taxes was instructed by his warrant to collect and pay over the said school-house tax to the towm treasurer, on or before January 1, 1868, and had given his bond as required by law to discharge such duty.

Under such circumstances, admitting a delinquency to have occurred on the part of the collector of taxes, what is the appropriate remedy therefor, as indicated by our statute law?

We have one important remedy prescribed in section four of chap. 59 Gen. Stat. “Any collector, to whom a tax is committed, who neglects to pay the same to the state, county, or town treasurer, or to the selectmen, or other person, to whom the same is payable, within the time limited in his warrant, which shall not be less than three months from the delivery of such warrant, except in cases, where a shorter time is limited by law, shall bo liable to an extent.” Section one, of the same chap, gives the meaning of this word extent. It practically provides, that the state treasurer, and each county and town treasurer may issue extents under their hand and seals respectively in cases authorized by law; and such extents shall be deemed to be executions against the persons and property therein named. Other sections of this law provide how personal property and real estate levied upon shall be disposed of, and that more than one execution may issue in cases of necessity. Section 14th of the same chapter provides another additional remedy, “towns shall have their remedy by action against auy selectman, or collector, through whoso default, any extent may have issued for all sums levied thereon, and for damages and double costs.

It will'be seen, that when the town collector is delinquent and fails to collect and pay over the money entrusted to him, to the town treasurer, or selectman, then he becomes legally liable to the extent, or action at law, as prescribed in the aforesaid chapter of our statute law. Each town acts through and by their legally constituted financial agents. Such agents are presumed to be ready at all times to perform their appropriate duties. Our school districts also act through and by their committees, or prudential agents, selected as the law requires.

The agent of the school district does not obtain the money directly from the town collector, which is apportioned to his school district, but he applies to the regular disbursing officer of the town, who is ordinarily the town treasurer, or to the selectmen acting as such, and receives from them or some one of them the money belonging to his district.

The town officer takes for his security the appropriate voucher for the money paid over to the agent of the district. The accountability or responsibility of these officers is made certain by the language of sec. 9 of ch. 220 Gen. Stat. This section prescribes who shall issue extents, when the collector fails to pay over his taxes. It says : “ That if the collector, to whom any warrant for the collection of taxes is committed, neglects to collect, and pay over the same to the selectmen, within thirty days after receiving the same, the selectmen may issue an extent against him.”

Our statute no where confers the power upon the collector to pay over any money, which he collects under his warrant, to the agents of school districts. When the statute law has so obviously and clearly indicated the remedies for the defaults of collectors of taxes, making them responsible and accountable in all cases to the town authorities, by whom they are often created, and for whom they act, we think it cannot be implied, that they are at the same time in auy sense required to pay these taxes directly to the school districts. Payment must be made to the higher town authorities, in the first instance, and the collector of taxes can seek protection in no other way. The statute law appoax-s to be clear and definite.

Generally, the collector’s warrant contains the written orders, or directions, which are made in strict obedience to the statute law, and when followed, collectors find themselves in the safe channel.

It would be quite absurd to suppose, that selectmen, when acting under the law, could order by their warrant, the collector to pay over the money belonging to the school districts, to the agents of such districts, rather than to themselves, or to the town treasurer. Selectmen and town treasurers, as public servants, are called upon to account for the money they assess as taxes upon their fellow-citizens, and they are expected to show good vouchers for all moneys paid over to individuals or school districts. These vouchers are the requisite evidence for them to have and preserve, in order to protect themselves, and to satisfy others that justice has been done, and the public money rightly appropriated.

Impressed with these views, without examining many other facts and arguments suggested by the defendant’s answer, some of which are not disputed by the parties, we come to the conclusion that we should not grant the petitioner’s request for the writ of mandamus * especially, as there are now existing remedies, which, if resorted to by the petitioner, would prove more satisfactory, more prompt and less expensive, than the one sought here, and in our view would be far more consistent with the law of the land on this subject. We are, therefore, of the opinion that this petition should be dismissed, with full costs to the defendant. Fox v. Whitney, 32 N. H. 408 ; Ballou v. Smith, 31 N. H. 413 ; Butler v. Selectmen of Pelham, 10 N. H. 553.