Osgood v. Welch

19 N.H. 105 | Superior Court of New Hampshire | 1848

Woods, J.

The statute provides that “ no person to whom any list of taxes shall be committed for collection, shall be liable to any suit or action by reason of any irregularity or illegality of the proceedings of the town or of the selectmen, nor for any cause whatever except his own official misconduct.”

The plaintiff, in this case, contends that the imperfect manner in which the town meeting was called, was such as to avoid all its proceedings, and, of course, to leave without any official power the officers who derived their authority from no other source; that the warrant of the selectmen, or rather of the persons assuming to act as such in this case, was in consequence entirely null and void, and afforded no protection to any party acting under it; and, finally, that the case is not one of irregularity or illegality in the proceedings of the town or of the selectmen, contemplated by the statute, but of a total absence of official authority, and of all action whatever on the part of the town, for the want of the indispensable preliminaries for convening its inhabi- , tants.

We think, however, that the statute demands a different construction, and that its clear design was to protect the officer therein named, acting under a warrant from those who actually perform the duties of selectmen under color of an election, from scrutiny into the legality of the meeting which invested them with the office, as well as the proceedings of such meeting when convened, and of the selectmen, in the steps leading to the issue of the warrant. The words “ irregularity or illegality of the proceedings of the town or of the selectmen,” are sufficiently broad to embrace the acts which precede the town meeting, as well as its acts when convened ; and the acts of the selectmen which called the meeting, as well as of the board created by it. But when the clause is added “ nor for any qause whatever except his own official misconduct,” the statute seems to afford ample protection to all acts of the party acting under color of an appointment, except such as amount to official misconduct.

The statute works no injury to those who may deem themselves aggrieved by the forcible collection of an illegal tax, but simply limits their choice of a remedy, and exempts innocent parties from the consequences of the official misconduct of others.

The principle is fully recognized in Kinsley v. Hall, 9 N. H. Rep. 190, in which the court declined to consider various objections to the legality of the tax, which were urged upon the precise ground here taken.

The same case furnishes an answer to the other exceptions here taken, and which regard the official demeanor of the defendant. It is there held, and must still be held, that the collector is not obliged to make unsuccessful search for property, in order to lay the foundation for an arrest of the delinquent tax payer. It is there intimated that he is not bound to seize property actually tendered, unless an indemnity is also furnished that shall protect him against other claims to the same property.

In the present case, the arrest was actually made before there is any pretence that property was tendered. He was not obliged to release the party afterwards tendering it. Neither the statute, nor usage, nor the reason of the thing calls for such a course of proceeding.

There is nothing that requires the collector to seek the party at his own home rather than elsewhere, to enforce his warrant. The language imputed to him proves no more than an apprehension on his part, not perhaps well founded^ in law, that if he had found him at home, he might have been compelled, at some risk and inconvenience, to seize such property as might have been offered. It is no evidence of official misbehavior. He had a perfect right to seek him away from home, or in any cireumstances.in which he might enforce the warrant in the effective manner which he had chosen, without embarrassment or inconvenience.

Judgment on the verdict.