The opinion of the court was delivered by
Redfield, J.The question, how far a tax bill and warrant, regular upon their face, are a justification to the collector, is presented for adjudication. The words of the present statute, — Rev. St., p. 377, — are, “No collector shall be liable to any action which shall accrue in consequence of any mistake, mischarge, or overcharge, in the tax bill committed to him for collection.” This provision is substantially the same with that contained in the statute of 1797, and which has been in force ever since that time. It has never been considered, in this state, that the tax bill and warrant were, of themselves, any sufficient justification to the officer. Neither the vote of the town, nor the assessment of the tax by the selectmen, is in the nature of the proceedings of a court, either of general, or special, jurisdiction. The legality of all the previous proceedings must be shown by the collector. The “ mistake, mischarge, or overcharge,” alluded to in the statute cited, doubtless refer solely to the writing out the assessment, and the little mistakes, which might always-be liable to occur, if strict mathematical accuracy were required. Section 37, too, page 377, seems to imply that the collector may be subjected to- loss by reason of the illegality of the assessment,— for it provides redress for such loss.
The only remaining question is in. regard to-the list, upon which the tax was voted. It was voted at the March meeting, and assessed upon the list which became complete in December after. The list was not even in progress of making at the time of the vote; so that the case of Montville v. Houghton, 7 Conn. 543, cited in argument, is not in point for the defence. A recurrence to the- statute, we think, must set the matter clear of all doubt. By the Revised Statutes, page 95, section 76, it is enacted, that “ any town may vote any sums of money,” &c., — specifying the objects, and leaving it discretionary with the town when and how much to vote. It is further provided, in regard to the assessment, that “ all taxes- ®f *579towns, &c., shall be uniformly assessed upon the lists of the persons taxed. This must import such lists as are then in being for the purpose of taxation. In Henry v. Chester, 15 Vt. 460, it was decided, that a list is not in being,, for that purpose, until finally returned to the town clerk’s office by the listers. It is impossible, then, to conclude that the legislature could have intended to give any such discretion to towns, as to put the tax forward upon a future list. That would be for one set of men to vote a tax upon the list of others, — for that, to some extent, would always be the case. The voters would be the persons listed the year before. Those to be listed the next year would always be different to some extent, and might none of them be the same. This last supposition., although never true in fact, perhaps, is always possible. This would be a manifest violation of one of the first principles of taxation in a free country, and one not likely to be wholly overlooked in a country which owes its very existence, politically, to the supposed disregard of this principle; at least, we could not suppose this, unless very obvious, and not resting upon the doubtful construction of a statute, which had practically received a contrary construction for a long course of years.
Judgment affirmed.,