Fuller v. Gould , 20 Vt. 643 ( 1848 )

The opinion of the court was delivered by

Davis, J.

No question is made, in the present case, but that this action would lie against two of the board of listers, for any acts of omission or commission by them, which would furnish a ground of action, when omitted or done by all. Where, as in this instance, the board consists of but three, the acts of a major part have the same validity, as if done by all. If these defendants, without the concur^ rence of Lyford, the other member, have, under color of their office, done any act, which, if done by all, would subject them to damages, they must be held responsible, if ¡the matter be alleged in proper and legal form.

The declaration charges, that the defendants wrongfully assessed the plaintiff, in the list of 1845 for the town of Cabot, in the sum of $1200 for money on hand and debts due, well knowing, that he was not liable to be so assessed. By section thirteen of the statute of 1841 the listers are required on or immediately after the first of April in each year to take the list of all persons liable to be taxed; and it is made the duty of such persons, on demand, or within ten days thereafter, to exhibit the amount of their personal property liable to taxation, and the amount of debts due from them, so far as they may choose to disclose, — on neglect of which, or in case the listers are dissatisfied with the exhibition made, they are required to assess such persons in such sum, as they think just and reasonable. This power of assessment seems to be general, applying to every species of taxable personal property. The third section defines what property shall be deemed personal property, within the meaning of the statute, among which are enumerated money, debts due from solvent debtors, money loaned on mortgage, &c. The fourteenth section requires listers, on or before the 10th of June, to make up their list, comprising, every fifth year, a valuation of all real estate, and every year an assessment of personal property. It prescribes the manner of arranging the several descriptions of property in separate columns, — the fifth containing the full value of all the personal property of each individual, after deducting the just debts owing by him. This list is required to be deposited with the town clerk, on or before the first of July; and thus all persons concerned are supposed to have notice of the amount and description of property, for which they are assessed.

Any person aggrieved may, within thirty days, make application in writing to have his assessment reduced, or vacated; and thereupon the listers may examine such person on oath, and hear other testimony, and, having heard the matter, they are to make up the assessment of such person, as, from the evidence, they shall deem just and equitable ; and, so far as the statute of 1841 is concerned, this determination is conclusive. I have no doubt, this hearing and adjudication may be made after the expiration of the thirty days,— as the whole of that period is allowed for making the application. The statute of the succeeding year furnishes a still farther remedy, in respect to assessments for money on hand, debts due, or for bank or insurance stock, or for faculty, or gains, that is, by an application to the selectmen. If the aggrieved party can, by his own testimony, on oath, or otherwise, satisfy them that his assessment is too high, they are required, by the 15th day of August, to make a certificate, under their hands, of the sum to which they have reduced the same; and that sum shall be taken by the listers as the true sum. The person making this application, or appeal, is required to give notice to one or more of the listers of the time of hearing. There is, I think, no reason to doubt, but that the selectmen may vacate the assessment altogether, if they think proper; but they have no power to raise it.

Although there is no express provision, that an appeal taken to the selectmen shall operate to suspend the powers of the listers over the subject, it seems reasonable to suppose, that such must be the effect. The act of taking an appeal supposes a definitive adjudication on the part of the board appealed from. If this be so, Lyford, with the assent of Gould, had no authority, at the time, to alter the adjudication already made by the whole board, from which the appeal was taken. The obliteration made on the list would be a nullity, which would need no correction, except as a mere matter of form. Whether so, or not, we entertain doubts, whether the presence of Lyford alone, at the time the plaintiff expunged the assessment, even though Gould as well as he assented to the act, can be regarded as a valid act of the whole board. To hold thus, after an assessment has been deliberately made and subsequently sanctioned on a full hearing, would occasion much confusion and embarrassment.

But even if this act of vacation were to be deemed valid and regular for the time being, inasmuch as the selectmen took no action in the matter of the appeal to them, and made no certificate as a guide to the listers, it would seem, that it was competent for the listers, under the authority given in the eighteenth section, to treat the act of Lyford as an error, and restore the assessment, as it stood originally. This was done in September, and the correction was entered upon the list in the town clerk’s office, though no other notice was given to the plaintiff. If the plaintiff lost the possible advantage of a more favorable consideration of his case, before a different tribunal, he did so by his own voluntary act, in neglecting to prosecute the matter before the selectmen. The matter was, by his own consent, in the same predicament, as if no appeal had been taken. The original power and authority of the listers was restored, as if no suspension had intervened.

But, besides this, we are all satisfied, that, on another ground, there must be judgment for the defendants. Listers, though not judicial officers, and though the duties required of them in many respects are ministerial, still in others, and especially in the particular matter now under consideration, act upon their best discretion and judgment; and when they have jurisdiction of the person and the subject matter, they are not responsible for any illegality, or error of judgment, into which they may have fallen. The plaintiff was a tax payer in the town of Cabot, and the defendants, with their associate Lyford, had the legal power to.assess the plaintiff for such money, debts, and other personal property, as he possessed. There is, of course, no want of jurisdiction over the person, or subject. The complaint is, that the plaintiff was wrongfully and illegally assessed with $1200 for money on hand and debts due, contrary to the truth of the case, the defendants well knowing that he had no such property subject to taxation. There are no allegations of facts in the declaration, and none appear in the record, to show, that, if in fact injustice was done to the plaintiff, it was other than an error of judgment on the part of the defendants; and for such error it is very clear, that no action can be sustained against them. All authorities' seem to be agreed in this.

In the case of Wilson v. The Mayor, Aldermen, &c., of N. York, 1 Denio 596, Beardsley, J., lays down the law, in respect to violations of duty purely judicial, on the part of public officers of every description, in the following terms, viz., “ No action lies, in any case, for misconduct or delinquency, however gross, in the performance of judicial duties. Although the officer may not in strictness be a judge, still, if his powers are discretionary, to be exerted or withheld, according to his own view of what is necessary and proper, they are in their nature judicial, and he is exempt from all responsibility, by action, for the motives which influence him, and the manner in which such duties are performed. If corrupt he may be impeached, or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done.” The defendants in that case were charged with carelessness and neglect of duty in raising and grading a street, on which the plaintiff owned property, so as to turn the water upon her premises, &c. We are doubtless to take it for granted, that the learned Judge presupposed, that the officers adverted to were acting within the scope of their legitimate authority; and even then it must be admitted, that respectable authorities require the further qualification, that they must appear to have acted without motive, or corruption. Muse v. Vidal, 6 Mumf. 27. Kennedy v. Terrill, Hardin 490. Reinbert v. Kelley, Harper 65. Walker v. Cochran, 8 N. H. 166. Neighbor v. Trimmer, 1 Harr. 58. Temple v. Mead, 4 Vt. 535. Blanchard v. Stearns et al., 5 Met. 298. Dillingham v. Snow et al., 5 Mass. 547. Br. Cast Plate Manufs. v. Meredith et al., 4 T. R. 794. Ingle v. Bosworth et al., 5 Pick. 498. Henry v. Edson, 2 Vt. 499.

With the qualifications to which I have adverted, there is no ground for saying, that the plaintiff has made a case authorizing a recovery. It was urged in argument, that the defendants, by first erasing the assessment, and afterwards restoring it, threw the plaintiff off his guard and prevented his following up his appeal to the selectmen, and perhaps obtaining a remedy from that body. Nothing of this kind is averred in the declaration, as a ground of action. No other matter is there insisted upon as wrongful, except the over-assessment ; no allusion is made to the erasure, the appeal, the nonattendance before the selectmen, or the restoration. Together, or separately, therefore, evidence in support of them was inadmissible, as affording a distinct cause of action.

The judgment of the county court must therefore be affirmed.