20 Vt. 643 | Vt. | 1848
The opinion of the court was delivered by
No question is made, in the present case, but that this action would lie against two of the board of listers, for any acts of omission or commission by them, which would furnish a ground of action, when omitted or done by all. Where, as in this instance, the board consists of but three, the acts of a major part have the same validity, as if done by all. If these defendants, without the concur^ rence of Lyford, the other member, have, under color of their office, done any act, which, if done by all, would subject them to damages, they must be held responsible, if ¡the matter be alleged in proper and legal form.
The declaration charges, that the defendants wrongfully assessed the plaintiff, in the list of 1845 for the town of Cabot, in the sum of $1200 for money on hand and debts due, well knowing, that he was not liable to be so assessed. By section thirteen of the statute of 1841 the listers are required on or immediately after the first of
Any person aggrieved may, within thirty days, make application in writing to have his assessment reduced, or vacated; and thereupon the listers may examine such person on oath, and hear other testimony, and, having heard the matter, they are to make up the assessment of such person, as, from the evidence, they shall deem just and equitable ; and, so far as the statute of 1841 is concerned, this determination is conclusive. I have no doubt, this hearing and adjudication may be made after the expiration of the thirty days,— as the whole of that period is allowed for making the application. The statute of the succeeding year furnishes a still farther remedy, in respect to assessments for money on hand, debts due, or for bank or insurance stock, or for faculty, or gains, that is, by an application to the selectmen. If the aggrieved party can, by his own testimony, on oath, or otherwise, satisfy them that his assessment is too high, they are required, by the 15th day of August, to make a certificate, under their hands, of the sum to which they have reduced the same;
Although there is no express provision, that an appeal taken to the selectmen shall operate to suspend the powers of the listers over the subject, it seems reasonable to suppose, that such must be the effect. The act of taking an appeal supposes a definitive adjudication on the part of the board appealed from. If this be so, Lyford, with the assent of Gould, had no authority, at the time, to alter the adjudication already made by the whole board, from which the appeal was taken. The obliteration made on the list would be a nullity, which would need no correction, except as a mere matter of form. Whether so, or not, we entertain doubts, whether the presence of Lyford alone, at the time the plaintiff expunged the assessment, even though Gould as well as he assented to the act, can be regarded as a valid act of the whole board. To hold thus, after an assessment has been deliberately made and subsequently sanctioned on a full hearing, would occasion much confusion and embarrassment.
But even if this act of vacation were to be deemed valid and regular for the time being, inasmuch as the selectmen took no action in the matter of the appeal to them, and made no certificate as a guide to the listers, it would seem, that it was competent for the listers, under the authority given in the eighteenth section, to treat the act of Lyford as an error, and restore the assessment, as it stood originally. This was done in September, and the correction was entered upon the list in the town clerk’s office, though no other notice was given to the plaintiff. If the plaintiff lost the possible advantage of a more favorable consideration of his case, before a different tribunal, he did so by his own voluntary act, in neglecting to prosecute the matter before the selectmen. The matter was, by his own consent, in the same predicament, as if no appeal had been taken. The original power and authority of the listers was restored, as if no suspension had intervened.
But, besides this, we are all satisfied, that, on another ground, there must be judgment for the defendants. Listers, though not
In the case of Wilson v. The Mayor, Aldermen, &c., of N. York, 1 Denio 596, Beardsley, J., lays down the law, in respect to violations of duty purely judicial, on the part of public officers of every description, in the following terms, viz., “ No action lies, in any case, for misconduct or delinquency, however gross, in the performance of judicial duties. Although the officer may not in strictness be a judge, still, if his powers are discretionary, to be exerted or withheld, according to his own view of what is necessary and proper, they are in their nature judicial, and he is exempt from all responsibility, by action, for the motives which influence him, and the manner in which such duties are performed. If corrupt he may be impeached, or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done.” The defendants in that case were charged with carelessness and neglect of duty in raising and grading a street, on which the plaintiff owned property, so as to turn the water upon her premises, &c. We are doubtless to take it for granted, that the learned Judge presupposed, that the officers adverted to were acting within the scope of their legitimate authority; and even then it must be admitted, that re
With the qualifications to which I have adverted, there is no ground for saying, that the plaintiff has made a case authorizing a recovery. It was urged in argument, that the defendants, by first erasing the assessment, and afterwards restoring it, threw the plaintiff off his guard and prevented his following up his appeal to the selectmen, and perhaps obtaining a remedy from that body. Nothing of this kind is averred in the declaration, as a ground of action. No other matter is there insisted upon as wrongful, except the over-assessment ; no allusion is made to the erasure, the appeal, the nonattendance before the selectmen, or the restoration. Together, or separately, therefore, evidence in support of them was inadmissible, as affording a distinct cause of action.
The judgment of the county court must therefore be affirmed.