"The selectmen shall seasonably assess all state and county taxes for which they have the warrants of the state and county treasurers respectively; all taxes duly voted in their towns, and all school, school-house, and fire district taxes authorized by law, or by vote of any school or fire district duly certified to them." G. L., c. 57, s. 3. The statute is not directory merely, requiring the assessment to be made, if upon examination and investigation the selectmen are of the opinion that the tax should be assessed; it is mandatory and peremptory, admitting no discretionary refusal to make an assessment called for in the statutory mode. No other method of assessment is provided; and unless the assessment can be compelled by mandamus, no remedy exists in case of the refusal of the selectmen to act, — and state, counties, towns, and school-districts must be dependent for the means of administering the government upon the judgment of selectmen and tax assessors as to the legality of the previous votes and proceedings authorizing the assessment of taxes, from which judgment there is no appeal. There is nothing in the language of the statute indicating that the legislature designed to invest selectmen with any such authority, and if such had been the purpose, it would probably have been expressed in unequivocal terms.
There is no more authority for assuming that the selectmen are at liberty to go behind the duly certified votes of the school-district in this case, than there is for holding that selectmen may go behind the warrants of the state and county treasurers to inquire into the constitutionality of legislative acts and the legality of the doings of the county convention before assessing the state and county taxes, and refuse to make the assessment if in their judgment the taxes are not legally ordered. Such a doctrine, which would submit to the determination of a tribunal from whose decision there can be no appeal, without trial, notice, or judicial investigation, the constitutionality of laws and the legality of votes involving important public and private interests, might lead to serious embarrassment in the administration of public affairs, and is not to be established unless clearly within the scope of the statute.
The reasons urged in support of a discretionary power in the *Page 205 assessment of taxes, when selectmen were held responsible for unconstitutional laws and illegal votes to the extent of being liable for taxes assessed in pursuance of such laws and votes, and compulsorily paid to the town, without remedy against the town (Wadsworth v. Henniker,35 N.H. 189), no longer exist. The language of the court, in Rogers v. Bowen, 42 N.H. 108, that "It is the duty of selectmen, before making an assessment, to ascertain whether or not the proceedings of the meeting at which the tax was voted were regular and legal; and if they were not, they make the assessment at their own risk," is not a correct statement of the law. This case, and others cited by the defendants, being based upon an erroneous theory of the responsibility of the tax assessors for errors of law or fact in the assessment, do not vest selectmen with a discretionary power in the performance of the duty of assessing taxes apparently legally authorized and duly authenticated in conformity to the statute. As selectmen incur no liability in assessing a tax in pursuance of an illegal vote (Edes v. Boardman, 58 N.H. 580), they cannot justify a refusal to make the assessment because the legality of the vote is questioned or doubted.
The evidence introduced by the plaintiff showed, prima facie, legal votes by the district to raise money for purposes authorized by law, duly certified to the defendants as selectmen, and their refusal to assess the taxes required. It was the imperative statutory duty of the defendants seasonably to assess the taxes authorized by the votes of the district, and duly certified to them. If the facts were as claimed by the defendants, they were not relieved from the duty of assessing the taxes. They were not the tribunal to determine the legality of the votes. The assessment would conclude the rights of no one. The refusal to make it would conclude the rights of the district and all parties interested, without trial or judicial investigation. The facts which the defendants offered to show, if proved, would be no defence to this petition, and the evidence was properly excluded. "A public officer, entrusted with the collection and disbursement of revenue in any of the departments of the government, has no right to refuse to perform his ministerial duties, prescribed by law, because he may apprehend that others may be injuriously affected by it, or that the law may possibly be unconstitutional. He is not responsible for the law, or for the possible wrong which may result from its execution. He cannot refuse to act because others may question his right. The individuals to be affected may not doubt the constitutionality of the law; or they may waive their supposed rights or wrongs; or may choose to contest the validity of the enactment personally. Public policy, as well as public necessity and justice, requires prompt and efficient action from such officers. The state, counties, towns, and school-districts must be supplied in order to accomplish the purposes of their organizations, and the proper officers in their respective departments must seasonably furnish the authorized amounts. *Page 206 The consequences would be ruinous if they could withhold their services and the necessary means, either from timidity or captiousness, until all questions of law which might arise in the performance of their official duties should first be judicially settled." Smyth v. Titcomb, 31 Me. 272,286. These considerations furnish sufficient reasons why selectmen should not be required or permitted to delay the assessment of a tax, duly certified and apparently legal, to inquire into the legality of the vote calling for the assessment, however it may be in case of a vote manifestly illegal on its face.
For similar reasons the motion of the tax-payers for leave to appear was properly denied. If allowed to appear, no defence would be open to them except such as could be made by the defendants. Carlton v. Patterson,29 N.H. 580, 586; Mathewson. Powder Works, 44 N.H. 289, 293; Dorr v. Leach,58 N.H. 18. No rights of theirs can be concluded by the assessment of the tax. The assessment will not interfere with the person or property of the party assessed. Perry v. Buss, 15 N.H. 222, 225. The tax-payers have an ample and appropriate remedy for the correction of errors of law or of fact by an appeal from the assessment (Edes v. Boardman, supra), and there is no occasion or necessity for allowing them in this proceeding to obstruct the course of public education, suspend the legitimate business of the school-district, and defeat the purposes for which it was created, by delaying the assessment and withholding needed funds until all questions affecting the legality of the votes can be judicially determined. A practice so liable to abuse, and so productive of needless delay, confusion, and uncertainty in the assessment of taxes for governmental and educational purposes, ought not to be established.
The objection suggested in the argument, that the petition cannot be maintained because it was not authorized by vote of the district, was not raised at the trial. The case does not show there was no such vote. It cannot be assumed that the objection would not have been obviated by evidence if it had been seasonably presented. A peremptory mandamus should issue to the present board of selectmen. High Ex. Rem., s. 441.
Peremptory mandamus ordered.
STANLEY, J., did not sit: the others concurred.