Hays v. Drake

Dewey, J.

The defendant is not responsible for any irregularity in the proceedings of the assessors, if the warrant directed to him was on its face within their jurisdiction. By virtue of the Rev. Sts. c. 15, § 33, constables are collectors of taxes, unless other persons are specially chosen to be collectors, and also, by § 78, in case the persons so chosen shall refuse to serve in said office. The defendant was duly elected a constable of the town of Buckland, and accepted the office, and gave bond and was duly sworn to the faithful discharge of the duties of that office. No further oath of office was required of him to render him competent to discharge the duties of a collector, if those duties should, under the statute, devolve upon him. Colman v. Anderson, 10 Mass. 105.

Although the evidence shows that there had been an election of another person as collector of taxes at the annual meeting in March previous, yet it also shows that such person had never qualified himself for the office, by taking the oath and giving the bond required by law.

Any irregularities in the proceedings of other officers, in respect to notifying such choice to the person thus chosen collector, cannot affect the defendant in this case. He knew he was liable to be called to discharge this duty, if there should be no collector legally chosen and qualified to act. A warrant to the defendant from the assessors, directing him to proceed to collect the tax as constable, was a warrant emanating from a tribunal having jurisdiction of the general subject, and would furnish a justification to him for acting under it, under the circumstances of this case. The person elected collector of taxes at the annual meeting in March had not, as late as the 19th of June following, taken the oath as collector, or given bond to the town for the faithful discharge of the duties of his office. There was no legally qualified collector, or person claiming to act as such, at the time of issuing the warrants to the defendant.

The fact, that the refusal of the person chosen as collector to accept that office, or his omission to qualify himself for the discharge of its duties, by taking the oath and giving the requisite bond, does not appear on record in the books of the town, does not render the defendant liable as a trespasser for executing the Warrants directed to him.

We see no ground for charging the defendant, because one of the warrants bears date before the day on which he gave bond to the town ; inasmuch as it is found by the facts stated in the case that the warrants were not delivered until the 26th of June, the day on which he gave the bond required by law.

Nor is it necessary to decide whether one of these warrants may not be defective in its direction, by reason of omitting the name of the person to whom it was delivered. Certainly the full designation by name is the most proper form. But as the other warrant is not obnoxious to this objection, and the property was originally taken upon that as well as the other, and this action was brought for the act of seizure, before any further proceedings had been had, by way of converting the property or applying the proceeds thereof, the defendant may well justify the taking under the warrant that is unexceptionable in form, and that is a sufficient defence to the present action. ' Exceptions overruled.