35 N.H. 189 | N.H. | 1857
The facts stated in the report of the case, Eiee v. the now Plaintiff, 7 Foster 104, are made a part of the present case. From those facts it appears that prior to 1837 the town of Henniker held a fund arising from the sale of lands set apart by the original proprietors for the support of the gospel and of public schools, which was known as the “ministerial fund.” This fund consisted in notes payable to the town, and bearing interest, and the accruing interest was annually appropriated, by dividing it among the several religious societies within the town. In 1837 the notes constituting this fund were collected, and, in pursuance of the vote of the town, the money was wholly applied to the purchase of a poor-farm for the town; the vote under which this application was made containing a proviso that the money should be refunded back to the town whenever the town should so vote. In 1839 the town voted that the interest upon the ministerial fund, viewing it as a fund still in existence, be paid over to the various religious denominations, as it had been previous to 1837. Although in fact no such fund then existed, a sum equal to the interest upon the original fund was thus annually paid to the various religious societies down to 1842, when the town again voted that the minist&rial interest money be appropriated as it had been, and that it should continue thus to be paid until otherwise ordered by the town.
In pursuance of these votes the interest upon this ideal fund was distributed each year down to' and including 1846 ; the amount distributed in 1846 being §86.53. The action, Eice v. the now Plaintiff, was brought to recover damages for the distress of the then plaintiff’s property, under a warrant for the collection of the tax of 1846 ; and in that ease it was held, that although, by the vote of 1846, the sum of $2300 was raised for the necessary charges and expenses of the town, the tax assessed for raising that sum was illegal, because it was to be understood
It is well settled that towns may indemnify their officers against liability arising from their official acts. This was expressly decided in Pike v. Middleton, 12 N. H. 278, and is fully sustained by the reasoning of the court and the authorities cited. If there is evidence in this case tending to show that the town agreed thus to indemnify the plaintiff, it should have been submitted to the jury for them to pass upon ; as the money paid by. the plaintiff on account of the illegal assessment may be recov
It is clear that no such agreement is implied or to be inferred from the fact that the town voted to raise the money, or voted to raise it for an illegal purpose. This view might perhaps be entertained if the relation of principal and agent subsisted between the town and its selectmen in the matter of raising money by tax ; and the votes of the town in raising it could justly be regarded as the orders and directions of the principal to the agents; the selectmen to make the assessment. Though the selectmen in some respects and for some purposes are properly deemed the agents of the town, it is very clear they are not so in reference to the assessment of the public taxes. They can no more be said to be the agents of the town in making the assessment, because they assess money for the use of the town or under a vote of the town, than that they are agents of the State or county, because in the assessment are included the State and county taxes. In this they are not acting as the agents of any principal, but as public officers, in the discharge of an official duty. In performing that duty they are bound to conform their action to the requirements of the law, and to confine it within the limits prescribed by law, irrespective of any instructions or directions they may receive from the town. They can proceed to assess a tax when the conditions exist which the law prescribes as the ground for their proceeding, namely, in the case of money raised by vote of the town; a legal vote to raise the money, and a purpose declared for which the money is raised, such that the town has the right to raise money by tax for that object. Beyond this their proceedings in that behalf are a nullity. But whether their doings are legal or illegal, they act in virtue of their office and in the discharge of a public official duty, and not by reason of any duty or obligation to the town, growing out of the relation of agent and principal between them and the town,
The question then recurs, is there any evidence in this case of an express promise to indemnify ? It is clear that no promise or agreement to this effect is proved by the votes of the town passed prior to the annual meeting in 1846. Those votes merely relate to the disposition of the different funds — the ministerial, the literary and surplus revenue — and the application of the interest arising from them, and in no view do they import any agreement of the town with the selectmen.
At the meeting of the town on the 30th of November, 1846 — subsequent to the assessment of the tax in question — several votes were passed on the subject of the proceedings of the selectmen in relation to the interest upon the surplus revenue, and on the subject of the bill in equity filed by certain tax-payers to restrain the selectmen from paying over to the poll tax-payers the amount of that interest. These all relate to the surplus revenue, and, with the exception of the last, are merely declaratory of the views of the town on the subject of the existence of the fund, as one still remaining in the hands of the town, and explanatory of their previous votes in directing the appropriation of the interest money upon it. It cannot be understood or inferred from any of these votes, unless it be the last, that the town, by their action in passing them, entered into an agreement of any kind with the selectmen. The last of these votes recites in its preamble that certain persons have instituted a bill in chancery against the collector of taxes and two of the selectmen, of whom the now plaintiff was one, for the purpose of preventing their proceeding under the vote of the town at the annual meeting in
It may be conceded that the proceeding of the town in adopting this vote is evidence upon which a jury might find that the town agreed to indemnify the defendants in the bill for the after expenses incurred by them in litigating that case ; but it is no evidence of any agreement beyond that. It is clear that it does not tend to show that the town agreed to indemnify the plaintiff against his liability in the suits at law commenced in 1849, three years subsequently, which liability arose, not on account of the questions in relation to the surplus revenue, alone involved in the bill in chancery, but on account of the illegality of the assessment in 1846, arising from the unlawful purpose for which, in connection with the distribution of the ministerial fund, the assessment was made. Even if the suits at law depended upon the same questions relative to the interest of the surplus revenue as were involved in the chancery suit, still an express vote of the town to indemnify this plaintiff against the expenses of defending the chancery suit, would be no evidence of an agreement to indemnify him against his liability in the subsequent suits at law.
The vote of the town in 1847 to suspend for one year the operation of the vote of 1846, respecting the interest arising from the surplus revenue, and to pay interest on the interest in arrear arising from the school and literary fund, it is very clear furnish no evidence of such agreement. There is nothing, then, in any of the proceedings of the town competent to be submitted to a jury as evidence upon which they might find that the town agreed to indemnify the plaintiff against the liability incurred by him in the assessment of the tax. In the absence of any such agreement, the money paid in settlement of the suits at law cannot be considered as paid for the town. It was paid by the plaintiff to discharge a liability incurred by him in the exercise of his office as selectman, in assessing a tax which the law did not
There is, then, no ground on which the plaintiff can recover in this case as for money paid. Can he recover on the ground that the defendant has received money to his use ? By means of the illegal assessment the town has received the amount of the taxes assessed. This was paid, first, to the collector of taxes, in discharge and satisfaction of the taxes, and subsequently through him to the town. But this cannot be regarded as money paid to the plaintiff’s use. If the money can be regarded as held by the town to the use of any person because it was received on account of taxes which were illegal, it must be the tax-payers and not the selectmen who merejy assessed the tax.
The subsequent proceedings resulting in the payment of damages by the selectmen to the tax-payers for the illegal assessment,
Besides, it is the policy of tbe law to secure all the guaranties for tbe fidelity and vigilance of the selectmen in the discharge of their duties as public officers, in assessing the tax, and as agents of tbe town in defending suits in which tbe town may have an interest, which are to be derived from holding them to a personal responsibility for their illegal proceedings.
It may also be suggested that even if there were proper grounds in this case for regarding tbe money as held by tbe town for tbe use of tbe plaintiff, no action can be maintained for its recovery until it has been demanded, and the case does not find a demand made before tbe commencement of tbe action.
Judgment on the verdict.
Perley, C. J., and Bbli. and Powleb, J. J., did not sit.