The opinion of the court was delivered by
Barrett, J. I.
As to the official authority of the defendant to collect the tax. The only question of fact in issue presented by the pleadings, is, whether the collector, Gilman, was disabled within the meaning of the statute that provides for the appointment, by the selectmen, of a person to collect the uncollected taxes, in cases where the collector becomes “ disabled by sickness or otherwise.” Gen. Sts. ch. 84, § 58. The manner of the appointment is not brought in question by the pleadings, but only the cause and occasion for the appointment, and that is limited to the single subject of disability. We accept the question the same as if it had been presented by an averment in the plea that Gil-man had become disabled by removal from town, and that had been demurred to ; and make no further criticisms as to the omission of the cause of disability in the plea, and the insertion of “by sickness ” in the traverse. Counsel need not be instructed that the legitimate scope and force of the averment of fact upon which issue is to be formed by a traverse, is not enlarged or changed by adding in the traverse words or expressions beyond, and different from, the averment. As it has been treated on the trial in both the county and the supreme courts, that the issue presented by the pleadings is, whethor the removal from town constituted disability, such as warranted the selectmen in appointing the .defendant to collect the tax of the plaintiff, so we treat it in deciding the case presented by the exceptions.
That provision of the statute was made in 1846. Previous to that, the statute did not authorize the selectmen to appoint a person to collect taxes. It only provided for supplying a substitute by an election at a special meeting of the town, when a collector had removed, or died, or been placed under guardianship, as in §§ 53, 54, ch. 83 — which were the same in the Rev. Sts., and substantially in Slade’s Comp. ch. 49, §13. If no such meeting should be called, the collector chosen at the next annual or stated meeting, was to take the old tax-bill, and collect what [688] was due on it, the same as the former collector was authorized to do. Only in the cases thus provided, and in the manner thus provided, could the taxes be collected by anybody but the collector to whom the tax-bill was originally delivered. As the law thus stood, whatever may have been the exigency arising upon the suspension of ability in the original collector to make further collections, the collection of taxes must cease till a new collector had been elected in the manner provided in §§ 53, 54. An exigency might as well occur, rendering it needful to have a collector at once who could act, when the collector had become disabled by reason of removal, death, or guardianship, as when disabled by sickness. A person would be as literally disabled by either of the three former of the causes, as by sickness. The terms of the statute of 1846 — now § 58 of ch. 84, Gen. Sts. — are in themselves ample to cover any kind of disability, from whatever cause arising. If that had been our only statute for supplying a substitute for a disabled collector, it is hardly conceivable that it would be claimed that the present case does not come within its operation, both on the score of the- reason and the terms of it.
That statute is not at contrariety with the provisions of the statute prior thereto, now making §§ 53, 54, of ch. 84, Gen. Sts. Those provisions are still left operative in the cases named, so that the town can, if it sees fit, proceed to elect, notwithstanding the selectmen should have made an appointment. The two statutes are not co-extensive as to subject-matter. Section-58 provides for a case not embraced in §§ 53, 54, viz : disability by sickness ; and while, by its terms, it embraces within the same provision, cases of disability by the means named in the former sections, it leaves the former sections operative as to the modes and causes provided for in them. The later act, § 58, supplements the earlier statutes, §§ 53, 54, by providing an additional mode of supplying a substitute for a collector who has become disabled by removal, death, or guardianship — a substitute as much needed in such cases of disability, as in case of disability by sickness— while it makes provision for a case of disability not embraced in the earlier statute. The argument hardly seems in point, which [689] is deduced from the calling of the office vacant in § 54, in case of removal, death, or guardianship, as named in § 53, while in § 58 it is not so called. The effective fact in the cases in both §§ 53 and 58, is, that the collector has become disabled to further perform the duties of the office. Though in § 58 the office is not called vacant, the provisions made in it as to the powers and duties of the person appointed in place of the disabled collector, show that it is regarded not merely as suspended by the sickness, but as becoming in fact vacant when the request is made to the selectmen. Eor it is made their duty thereupon to proceed and find or make a substitute. And from the making of said request, every reason for an appointment to be made by the selectmen, exists with equal force as in cases of disability named in § 53.
It would seem, too, that the claim is not well grounded, that the expression, “ disabled by sickness or otherwise,” should be limited to lack of physical ability on account of some bodily ailment. Official disability may as well proceed from other causes as from sickness or bodily ailment, and the “ or otherwise,” following “ by sickness,” is ample to cover and embrace all causes of disability. Disabled, is the fact, that produces the occasion for a substitute. The cause of being disabled is not important as constituting a reason or purpose of the provision for a substitute. It is demonstrated that in statutory language and contemplation, persons may be disabled from official service by the very causes named in § 53 ; for in ch. 15, § 21, is the expression, “ by reason of non-acceptance, death, removal, insanity, or other disability.” So that it would be entirely consonant with the legislative vocabulary and usage, to construe the “ or otherwise,” in § 58, ch. 84, as embracing just such causes as are treated as producing disability in said § 21, ch. 15.
Though we take notice of the irregularity in the pleadings of two distinct formal replications to a single plea, as no question has been made upon it in either court, we proceed to consider—
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The opinion of the court was delivered by
Barrett, J. I.
As to the official authority of the defendant to collect the tax. The only question of fact in issue presented by the pleadings, is, whether the collector, Gilman, was disabled within the meaning of the statute that provides for the appointment, by the selectmen, of a person to collect the uncollected taxes, in cases where the collector becomes “ disabled by sickness or otherwise.” Gen. Sts. ch. 84, § 58. The manner of the appointment is not brought in question by the pleadings, but only the cause and occasion for the appointment, and that is limited to the single subject of disability. We accept the question the same as if it had been presented by an averment in the plea that Gil-man had become disabled by removal from town, and that had been demurred to ; and make no further criticisms as to the omission of the cause of disability in the plea, and the insertion of “by sickness ” in the traverse. Counsel need not be instructed that the legitimate scope and force of the averment of fact upon which issue is to be formed by a traverse, is not enlarged or changed by adding in the traverse words or expressions beyond, and different from, the averment. As it has been treated on the trial in both the county and the supreme courts, that the issue presented by the pleadings is, whethor the removal from town constituted disability, such as warranted the selectmen in appointing the .defendant to collect the tax of the plaintiff, so we treat it in deciding the case presented by the exceptions.
That provision of the statute was made in 1846. Previous to that, the statute did not authorize the selectmen to appoint a person to collect taxes. It only provided for supplying a substitute by an election at a special meeting of the town, when a collector had removed, or died, or been placed under guardianship, as in §§ 53, 54, ch. 83 — which were the same in the Rev. Sts., and substantially in Slade’s Comp. ch. 49, §13. If no such meeting should be called, the collector chosen at the next annual or stated meeting, was to take the old tax-bill, and collect what [688] was due on it, the same as the former collector was authorized to do. Only in the cases thus provided, and in the manner thus provided, could the taxes be collected by anybody but the collector to whom the tax-bill was originally delivered. As the law thus stood, whatever may have been the exigency arising upon the suspension of ability in the original collector to make further collections, the collection of taxes must cease till a new collector had been elected in the manner provided in §§ 53, 54. An exigency might as well occur, rendering it needful to have a collector at once who could act, when the collector had become disabled by reason of removal, death, or guardianship, as when disabled by sickness. A person would be as literally disabled by either of the three former of the causes, as by sickness. The terms of the statute of 1846 — now § 58 of ch. 84, Gen. Sts. — are in themselves ample to cover any kind of disability, from whatever cause arising. If that had been our only statute for supplying a substitute for a disabled collector, it is hardly conceivable that it would be claimed that the present case does not come within its operation, both on the score of the- reason and the terms of it.
That statute is not at contrariety with the provisions of the statute prior thereto, now making §§ 53, 54, of ch. 84, Gen. Sts. Those provisions are still left operative in the cases named, so that the town can, if it sees fit, proceed to elect, notwithstanding the selectmen should have made an appointment. The two statutes are not co-extensive as to subject-matter. Section-58 provides for a case not embraced in §§ 53, 54, viz : disability by sickness ; and while, by its terms, it embraces within the same provision, cases of disability by the means named in the former sections, it leaves the former sections operative as to the modes and causes provided for in them. The later act, § 58, supplements the earlier statutes, §§ 53, 54, by providing an additional mode of supplying a substitute for a collector who has become disabled by removal, death, or guardianship — a substitute as much needed in such cases of disability, as in case of disability by sickness— while it makes provision for a case of disability not embraced in the earlier statute. The argument hardly seems in point, which [689] is deduced from the calling of the office vacant in § 54, in case of removal, death, or guardianship, as named in § 53, while in § 58 it is not so called. The effective fact in the cases in both §§ 53 and 58, is, that the collector has become disabled to further perform the duties of the office. Though in § 58 the office is not called vacant, the provisions made in it as to the powers and duties of the person appointed in place of the disabled collector, show that it is regarded not merely as suspended by the sickness, but as becoming in fact vacant when the request is made to the selectmen. Eor it is made their duty thereupon to proceed and find or make a substitute. And from the making of said request, every reason for an appointment to be made by the selectmen, exists with equal force as in cases of disability named in § 53.
It would seem, too, that the claim is not well grounded, that the expression, “ disabled by sickness or otherwise,” should be limited to lack of physical ability on account of some bodily ailment. Official disability may as well proceed from other causes as from sickness or bodily ailment, and the “ or otherwise,” following “ by sickness,” is ample to cover and embrace all causes of disability. Disabled, is the fact, that produces the occasion for a substitute. The cause of being disabled is not important as constituting a reason or purpose of the provision for a substitute. It is demonstrated that in statutory language and contemplation, persons may be disabled from official service by the very causes named in § 53 ; for in ch. 15, § 21, is the expression, “ by reason of non-acceptance, death, removal, insanity, or other disability.” So that it would be entirely consonant with the legislative vocabulary and usage, to construe the “ or otherwise,” in § 58, ch. 84, as embracing just such causes as are treated as producing disability in said § 21, ch. 15.
Though we take notice of the irregularity in the pleadings of two distinct formal replications to a single plea, as no question has been made upon it in either court, we proceed to consider—
II. It is claimed that the list on which the tax was made out, is affected with illegality. Illegality in the list of the plaintiff, does not result from what passed between the plaintiff and the [690] lister, Davis, at the time the plaintiff gave in his list in writing. The paper thus given in, did not constitute the assessment named' and meant by the statute, nor did the memorandum made by Mr. Davis on the book that he carried. This was only the getting together of the materials which were to be taken into consideration by the listers in making the assessment and completing the list of the plaintiff. Illegality in the list, if any there be, must be the result of some violation of, or failure to perform, some duty resting on the listers in making up the list of the plaintiff. It is not claimed that auything was illegally done, except as to the bank stock. The plaintiff was not assessed for money on hand, or for debts due, or for stock in trade or manufactures. All of the list that he gave in, except poll and bank stock, was wiped out by the debts owing by plaintiff. It is claimed that the bank stock should also have been excluded from the list by reason of such debts, and that the listers were in default of duty in this respect, in not having given the plaintiff the notice provided in ch. 88, § 27, for the hearing of persons who shall feel themselves aggrieved by the assessment made by them. A full and conclusive answer in this respect, is furnished by the same section, in the fact that it provides for such notice only in case the listers shall assess for money on hand, debts duo or to become due, stock in trade or manufactures ” — and this is required, to the end that persons thus assessed, if aggrieved by such assessment, may be heard in respect thereto.
Bank stock does not fall within that provision. That is the subject of a distinct provision of the statute, ch. 61, §42, Gen. Sts., act of 1865, No. 6, by which the amount returned by the cashier to the town clerk, is, by the listers, to be set in the list according to the requirements therein contained. The setting of bank stock in the list as thus required, is altogether a different matter from the assessing of a person for money on hand, debts due, stock in trade, &c. — all of which latter materials for making-up a person’s list, constitute subjects of inquiry and showing, in order to enable the listers to adjudicate the amount, if any, for which such person should be assessed. No such inquiry or showing or adjudication, is contemplated by the statute in respect to [691] bank stock; and this would be a good reason, if reason were needed, why bank stock was not embraced as a subject of the notice required to be given by said § 27. It is, however, sufficient, without inquiring as to the reason, that bank stock is not embraced as subject-matter for the required notice. Illegality in the plaintiff’s list cannot have proceeded from the not giving of the notice in question.
As to debts owing by the plaintiff which might lawfully be offset against his bank stock, it may be remarked that the statute does not require any notice to be given him by the listers. That matter seems to be left without provision for any formal proceedings, to bo moved by the claimant of the offset by application to the listers in that behalf. Upon any thing shown or found in this case, there is no ground even for pretence or suggestion that the listers neglected or violated any official duty in that respect. The matter was left open at the time the plaintiff gave in his list, with his memorandum of the amount he claimed he was owing. It was for him to pursue the matter to a final consummation, if he saw fit. He was apprized that he could have opportunity on a day and at a place named, to meet the listers with reference to any matter touching the making up of his list. He voluntarily refrained from availing himself of it. The difference of understanding between him and the lister, Davis, does not affect the list with illegality, for the ample reason, that it does not import any failure or violation of official duty on the part of the listers. It seems needless to pursue the subject more in detail.
The “clerical error” named in the last point in plaintiff’s brief, is not before us for correction. If it were, the last clause in the findings stated in the exceptions, shows the matter according to the fact,-and shows no fault in the judgment on this account.
Judgment affirmed.