The first enquiry regards the validity of the tax.
A gеneral statute applicable to all our towns, has been made for the assessment oi taxes. Stat. 444.
. By this law, assessors are to bе chosen, whose duty it is to receive the lists of all the inhabitants ; and having perfected them, by adding property omitted, by valuation оf the items, and by the requisite assessments, to return an abstract of the lists to the town-clerk, on or before the 1st of December in each year. Thе lists and valuations the town-clerk is directed to submit, when requested, to the inspection of every person liable to pay taxеs.
A board of relief is constituted, to hear appeals from the doings of the assessors; and having given not less than ten days noticе, they are to meet, on or before the first Monday of January in each year, to determine the appeals made to them. The assessmеnt list, as annually made and corrected, is the rule for the apportionment of taxes to individuals.
From this view of the law, it appears to bé a positive provision, that the lists shall be returned to the office of the town-clerk, on or before the 1st of December in each year. This direction is imperative, and is alone alterable by the legislature. The court must take the law as they find it, and cannot sаy, that a return after the 1st of December is valid, unless they assume the character of law-makers.
The reason of this legislative provision, is very apparent. It is for the general benefit of every inhаbitant of our towns, that each may inspect the list of his estate, ánd if he believes-that injustice is done him, that he may appeal fоr its correction, to the board of review. That a time for the return of the lists should be limited, the general convenience demands; and that it should be sufficiently early, for universal inspection, and preparation for a future hearing before the board of rе-* view, is perfectly obvious. On this principle, the legislature appointed the 1st of December, as the ultimate period of the return. This branch оf the law is as imperative and as unchangeable by the court, as any other; and were it within their competency, it would be difficult to assign a period more reasonable.
That the return should punctually be made, is indispensable. A different principle would nullify the lаw, and produce the genera] inconvenience arising from an unlimited return. No
If the legislature, in a charter of incorporation, had author-jzec[ the laying of taxes upon lists returned to a public office at a sрecified time, the necessity of a strict observance of the limitation would not admit of a question. Head & Amory v. Providence Insurance Company, 2 Cranch 127. Broughton & al. v. Manchester and Salford Waterworks, 3 Barn. & Ald. 1. Slark v. Highgate Archway Company, 5 Taun. 792. New York Firemen Insurance Company v. Ely & Parsons, 5 Conn. Rep. 560. The case before us, is striсtly analogous to the one supposed. The general law is an enabling act to all our towns ; it has prescribed the subjects of taxation, and the mode ; and as there is no authority to tax, except what is conferred by the law, it must be strictly observed.
It has been enquired, whether the returns of the abstract of the lists, by the town-clerk, to the comptroller, must be by the 1st of March in each year, acсording to the provision of the act in question ; and if not, whether the legislature are precluded from laying taxes upon the assеssment list. Unquestionably, they are not. The case put, and the-one under discussion, are, in no respect, analogous. The abstract assessment lists of the towns, must be strictly returned to the town-clerks, or there-is no legal assessment; but if a town-clerk does not return to the comptroller, an abstract of the assessment lists, pursuant to the provision of law, the lists are not invalidated, but he is subjected to a penalty.
The omission to return an abstract of the assessment lists to the town-clerk of Bozrah, was a fatal error. It follows, that no legal assessment was made ; and of сonsequence, that there was no rule for the apportioning of taxes.
2. By an act of the General Assembly, passed May session, 1829, (Stat. vol. 2. p. 237.) it was provided, that when assessors have negleсted or omitted to return an abstract of the assessment lists to the fown-clerks, in their respective towns, by the 1st day of December, such lists shall not be аdjudged void ; but that all taxes laid upon them, may be levied and collected. It has been argued, that this law cures the difficulty, in the presеnt case ; but the error of the supposition is obvious. The act relates exclusively to taxes not levied or collected. It cannot be affirmed, that the сage before us, is within the terms of
It is clear, then, that the act of May session, 1829, has not healed the infirmity of this case.
3. The assessment being invаlid, and not helped by the late law, it has become a third enquiry ; whether the defendants are liable in trespass, for the act done by their command.
In their behalf, it has been said, that they acted in pursuance of their legal duty ; for that the law (Stat. 454. § 14.) has imposed on them thе burden of making out rate-bills, and procuring warrants, for the collection of taxes. The true construction of the act in questioji, is, thаt the select-men are enjoined to make out rate-bills, on legal assessments. But if an assessment is illegal and void, it would be absurd to сonsider the law, as requiring of the select-men to cause a rate-bill to be made upon it, and a warrant to be issued for its enfоrcement. A void assessment renders the warrant upon it equally void ; and both together constitute no justification to the actors in thе illegal proceeding. Stetson v. Kempton & al. 13 Mass. Rep. 272. 282. The act of the collector, in taking the plaintiffs’ property, in contemplation of law, was thе act of the defendants, who commanded it; and although the collector was justified, by his warrant, (Stetson v. Kempton & al. 13 Mass. Rep. 272.) yet the defendants have no justification.
There is no other rule than this, that a ministеrial officer(and certainly, in this case, the defendants rank no higher,) is protected while acting within legal authority. 1 Sw. Dig. 547. Even a pound-kеeper, who is obliged to take what is brought to pound, at the peril of the person who brings it, “if he goes one jot beyond his duty, and assеnts to a trespass,” becomes a trespasser. Baldwin v. Rowel, Cowp. 478.
An illegal and void assessment is no assessment at all; it is a nullity ; and authorises no person to act under or enforce it. Lord Amherst v. Lord Somers & al. 2 Term Rep. 372. Coleman v. Anderson, 10 Mass. Rep. 17. Agry v. Young, 11
x he injury complained of was immediate, and not consequential; and hence, trespass is the proper remedy. Gates v. Miles, 3 Conn. Rep. 64.
On the whole, the determination at the circuit was manifestly correct, and no new trial is by me advised.
New trial not to be granted.