24 Vt. 9 | Vt. | 1850
The opinion of the court was delivered by
This was an action of trespass on the case, brought against the defendants as listers of the town of St. Johns-bury, for the year 1848. The defendants were charged with having wrongfully divided the plaintiffs’ list of personal property, designating a fourth part of the property as being in school district No. 2, when it should all have been designated as in district No. 1.
It is made a point of defense, that the duty of the defendants, in reference to the matter complained of, was of a judicial character ; and that they are consequently shielded from personal liability, though they may have acted in a manner not warranted by law. There is no doubt, that in many things the acts of listers so far partake of that character, that they will incur no personal responsibility when not actuated by malice. This may generally be said of the appraisals and assessments which they are commis
The next inquiry is, whether any personal estate of the plaintiffs’ could legally be set in the list as being in school district No. 2. It appears from the case that no part of their personal property was kept in that district, but that all which had not been sent abroad was in district No. 1. The only ground for supposing that any portion could rightfully be designated as being in the other district, where one of the partners lived, must therefore be sought in the well-known principle of common law, in relation to personal estate, — that it is considered as attendant upon the person of the owner, and as having ho other situs than his domicil or residence. But with us the strictness of that principle is in many cases modified by statutory provisions, which, for purposes of taxation, give distinct locality to moveables. Thus, by the act of A. D. 1841, Sec. 12, partners in mercantile or other business, may be jointly assessed by their partnership name, in the town where their business is carried on, for all their personal property employed in the business, whether they reside in the same or different towns. That enactment comprised in its operation the personal property in the plaintiffs’ partnership, both at home and abroad. It was all brought within the cognizance and jurisdiction of the defendants
But it is insisted, that if the defendants have incurred a liability, it is not to these plaintiffs, but to Joseph P. Fairbanks alone ; inasmuch as his individual property was distrained and sold to satisfy the tax. To this objection, however, we think the case discloses a satisfactory answer. Had the" taking and sale of the property been wrongful, by reason of positive illegality in the tax, he alone could have sustained an action for the trespass or tort. So likewise, had the taking ór sale been rendered tortious by illegality in the collector’s proceedings. In short, any action founded on this seizure and sale, as the' immediate cause of action, must have been prosecuted by Joseph P. Fairbanks, as sole plaintiff. But the list made by these defendants became the basis on which the committee and collector of the district were legally authorized to act, and the regularity of their doings is not questioned. Consequently, the seizure and sale of the property were
It remains to inquire, whether the case shows any such evident damage and injury to have occurred to the plaintiffs, as necessarily to render the judgment against them in the court below, erroneous. No complaint is made as to the aggregate sum at which the personal estate of the plaintiffs was set in the list, but only that a portion of it was subjected to taxation in the wrong school district. And the case furnishes no test by which to determine whether any injury to the plaintiffs was thereby produced, except the comparative rate of taxation in the two districts. But that was a trifle less in district No. 2, than in No. 1. It would seem, therefore; that the plaintiffs rather gained than lost, by the wrongful location which the listers assigned to the ten thousand dollars of personal property. It appears, indeed, that, after the two districts had voted their respective taxes, and the sum set to the plaintiffs in thp second district, was added to the amount standing against them in the first; and that they voluntarily paid a tax upon it in that district. But as that proceeding was not shown to have been authorized or sanctioned by any competent authority, we think it was entitled to no influence in the