John Sprague versus Timothy Bailey, 19 Pick. 436

Shaw C. J. delivered the opinion of the Court. Cases of This description are well calculated to bring to a severe test the regularity of public bodies and public officers. A man, it is true, ought not to be distrained for his taxes, unless the steps of the law have been pursued ; at the same time, it is contrary alike to justice and public policy, that officers who intend to act correctly, should be subjected to damages and costs, upon mere technical objections ; and therefore such exceptions only are to be listened to, as are strictly warranted by law.

The plaintiff’s objections to his liability for this tax are all strictly technical. The first is, that the meeting at which the tax was voted, was not duly organized by the choice of a moderator. The Court are of opinion, that this exception cannot prevail. The action is trespass against the collector ; it charges him as a wrongdoer, in taking the plaintiff’s property without lawful warrant. The collector, we think, is not responsible for the regularity of the meeting or the validity of the votes at the meeting, at which such tax was granted.

The next objection is, that the warrant was not sufficient to authorize the town to choose a collector. The warrant was “ to fill vacancies.” No collector having been chosen, there was a vacancy, which might be filled either by electing a separate officer, or by voting to appoint the treasurer to be collector, under the authority of St. 1815, c. 130, § 1, which was done. The next objection is, that it does not appear that the plain tiff was sworn as collector.

Upon this point the Court are of opinion, that there was competent evidence to go to the jury, to find whether the plaintiff was sworn as collector or not, and whether this was done for that year. The entry in the book is a memorandum, not a record, and may be left to the jury with other evidence upon the fact. But as the verdict was taken pro forma, and this question was not passed upon, we think the case must go to the jury again, to determine this fact. The next objection is, that the books were not lodged in the assessors’ office. This objection is founded on the authority of Thayer v.

Stearns, 1 Pick. 482, putting a construction upon St. 1785, c. 50. Since that case, the law in this respect has been altered by St. 1823, c. 138, § 3. This provides, that the assessment lists, together with a copy of the invoice and valuation, &c. shall be deposited in the assessors’ office, where any is kept, otherwise shall be lodged with the chairman or principal assessor, there to remain for examination. In the present ease, there was no assessors’ office, and the assessors did not appoint either of their number chairman, and therefore we think Mr.

Perkins* who did all the writing, might be deemed the principal assessor for this purpose, within the meaning of the statute. It is found that the book of 1834, by which we understand the assessment lists, together with the invoices and valuation, was deposited with him, and that any person could have access to them by applying to him. We think the assessment cannot be avoided on this ground. The next exception is, that the assessors did not post up a copy of the 2d

section of St. 1815, c. 130, conformably to the direction of the 4th

section of the same statute, but only an abstract thereof. The Court are of opinion, that this was merely directory to the assessors, and that a failure in this respect does not constitute an objection to the validity of the assessment, which is open to the plaintiff. The same answer applies to the objection to the form of valuation. The last objection relied on is, that the warrant was signed by two only of the three assessors.

We take the rule to be, that where a power is to be executed or ministerial act done by three or more individuals, and no authority is given to the majority, all must execute, to give validity to the act. But where an authority is vested in a public organized body, for public purposes, the act of the majority is the act of the body. The Court are of opinion that the plaintiff’s motion to set aside the verdict and order a new trial, ought to be so far granted, as to open the single fact, whether the collector was duly sworn as such collector, for the year 1834.

This may conveniently be done, the parties consenting to it, by directing the jury, if they find that he was duly sworn, to find a verdict for the defendant ; otherwise, to find a verdict for the plaintiff, and assess his damages.