Davis v. Strong , 31 Vt. 332 ( 1858 )

Bennett, J.

We think the defendants were entitled substantially to the charge asked for. The court put the case to the jury upon the ground that this was not a case where the powers and duties of the listers could be esteemed of a judicial character, and that they would not be protected if they acted erroneously, though they acted honestly. Although the listers are not strictly judicial officers, still, if the character of their acts is not ministerial, but are judicial, involving the exercise of discretion and judgment, they should be be protected in all honest, bona fide, judicial acts, upon the same principle and for the same reasons for which judicial officers are protected.

It is said in argument that the listers must sue at their peril; that they have jurisdiction over the person of the individual who is subjected to taxation, and if they have not, they, like courts of limited jurisdiction, become trespassers.

But this is a case whei-e the listers of Berlin once had unquestioned jurisdiction.

The plaintiff had resided, de facto, in Berlin, up to the 30th of March, 1855 ; had had his list in that town, and had paid taxes also there, and the question was whether they had lost that jurisdiction. By the statute of 1853, p. 35, if the removal was for the purpose of avoiding listing and taxation, or for the purpose of changing his list to some other town, etc., it had no effect, and the jurisdiction to assess taxes against the plaintiff still continued in the listers of Berlin. It then became the imperious duty of the listers to adjudge and determine as to the character of his removal, and this was to be inferred from the facts and the circumstances attending the case. The discharge of this duty involved discretion and judgment, and we think the duty is of a judicial character, and that the listers should not be made liable for an error in judgment, where they acted bona fide, and according to their best judgment. The character of the act as to the finding of the intention in making the removal, is the same, whether it be determined by the board of listers, or by a court and jury. Inasmuch, then, as the listers had jurisdiction of the subject matter, and of the person, without question, up to the 30th of March, 1855, whether under the circumstances of this case that jurisdiction was continued to the 1st day of April, involved the exercise of discretion and judgment, and is an act .strictly of a judical character, as we think.

The judgment of the county court is reversed, and cause remanded.

Aldis, J., dissented.