Hadley v. Chamberlin

11 Vt. 618 | Vt. | 1839

The opinion of the court was delivered by

Williams, C. J.

The defendant justifies the taking for which the action was brought, as collector of school district No. 5, in Waterford, by virtue of a warrant and rate bill. Several questions have been made in the case, and, indeed, cases of this nature are usually prolific of litigated and curious questions at least. The first point presented, is, whether the defendant, Chamberlin, was collector.

It appears, that, when the records of the district were first produed to show this appointment, and they were insufficient for that purpose, the defendant, Chamberlin, who was or had been clerk, then made the alteration mentioned in the bill of exceptions. It is undoubtedly the duty of all recording officers to see that the proceedings of the corporation are correctly recorded, but the practice of amending and altering the records, when a controversy has arisen, to meet a particular case, or in consequence of a decision of the court, cannot be defended, and the case before us shows the impropriety of such a procedure. The records, as they were first made, undoubtedly showed what the district intended, whether it was legal or not. As they were amended, they showed an inconsistency in the proceedings. The first objection which was raised, was, that there did not appears to an^ aPP^cat^on 'n writing to the clerk to warn the meeting of the district. But as the application is not required to be kept or recorded, it is to be presumed that the clerk acted on a proper application, in warning the meeting, unless the contrary is shown. The meeting was warned on the 17th, and was held on the 23d, March, 1835, at which time, from the records, as. they now stand, it appears that Horace Buck was appointed collector, and that he declined accepting.

If Buck could decline, without the consent of the district, the office was vacant, and they should have elected another person. But it appears that they chose the defendant, Chamberlin, collector pro tem. to collect all arrearages, and in the receipt which he executed for the rate bill he signs as collector pro tem.

A collector of rates is an officer of the district, for 'whose appointment provision is made by statute, and his duties are also pointed out by the same statute. He is to hold his office for one year, and until another is chosen in his stead. His duties cannot be assigned to another, nor any part of them, and, of course, the district can make no temporary appointment, or choose a collector to collect one tax, or the arrearages. It is very evident that the defendant was not chosen as collector, to do all the duties appertaining to that office for the year next following, but only as a temporary officer for a particular purpose, and such a collector is not known to the law, and cannot be recognized as such. Whether we consider Buck as the actual collector, as appeared from the records when first produced, or consider the office as vacant, as it now appears, Chamberlin was only designated to perform a part of the duties appertaining to the office, and was not elected to the office of collector. Not being collector, he had no authority to collect the tax in question. This renders it unnecessary to consider the other questions raised in this case.

The judgment of .the county .court is, therefore, reversed