Dunbar v. City of Boston

112 Mass. 75

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1873
• Status: Published

Opinion

By the Court.

It is admitted that the taxes, to recover back which this suit is brought, were legally assessed and were due from the plaintiff to the defendant. The constable and deputy collector, to whom the warrant was committed for service, arrested the plaintiff, who thereupon paid the taxes under protest. The only ground upon which he seeks to maintain this suit is that such arrest was illegal.

We have not deemed it necessary to consider this question, because, if the arrest was illegal, the plaintiff cannot maintain this action. The constable and deputy collector, in serving the warrant, did not act as the servant or agent of the city, but as a public officer of the law. If he exceeded his authority, the remedy of the plaintiff is in a suit against him; but the city is not responsible, and the plaintiff cannot maintain an action against it for damages, nor to recover back the money paid. Buttrick v. Lowell, 1 Allen, 172. Kimball v. Boston, 1 Allen, 417. Rossire v. Boston, 4 Allen, 57. Exceptions overruled.