Sherman v. Torrey

99 Mass. 472

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1868
• Status: Published

Opinion

Chapman, C. J.

It is agreed that the defendant Torrey was duly chosen collector of taxes for Williamstown; and that an assessment was duly made and committed to him for collection; and the questions presented in the case relate merely to his proceedings in making the collection.

The town voted, at its annual meeting in March 1866, “ that the collector have all the powers that the town treasurer has when appointed collector of taxes.” The plaintiff contends that this vote was void. It is provided by the Gen. Sts. c. 18, § 73, that towns may pass such a vote at a meeting notified for that purpose. The plaintiff denies that the meeting was notified for that purpose. The third article in the warrant was, “ To elect all necessary town officers for the ensuing year.” The fourteenth article was, “ To raise and appropriate such sums of money as may be necessary to defray town charges for the coming year and pay any indebtedness of the town.” The Gen. Sts. c. 18, § 22, provides that the warrant shall express the subjects to be acted upon, and nothing acted upon shall have a legal operation unless the subject matter thereof is contained in the warrant. But in Haven v. Lowell, 5 Met. 35, the court say that the articles in the warrant are, from the very nature of the case, general in their description, and are oftentimes inartificial in their construction ; and that they are mere abstracts or heads of the propositions which are to be laid before the inhabitants for their action. Articles of such a character have been held sufficient in many cases. See Avery v. Stewart, 1 Cush. 496; Rand v. Wilder, 11 Cush 298; Williams v. School District in Lunenburg, 21 Pick. 81; Grover v. Pembroke, 11 Allen, 88. The court are of opinion that the article in this case was sufficient. The subject of choosing officers includes, as an incident, any special authority that the town is authorized by statute to confer upon them in the exercise of their official duties.

It is agreed that Kellogg, the other defendant, was a deputy sheriff; and that Torrey, the collector, issued a warrant to him under which he acted. It is contended that this warrant was insufficient in form and substance to authorize him to act. It is addressed to the sheriff or his deputy, and directs them to levy, and collect of the several persons named in it, the sums stated, being the sums due from them as their respective portions of the taxes for the year 1866, “ whereof said persons have neglected to make payment and thereof are delinquent.” The objection to the warrant is, that it does not appear on the face of it that it was issued in the due and lawful exercise of a power or jurisdiction conferred by law. The form of warrants to be issued by assessors to collectors was prescribed by the St. of 1785, c. 50, § 6. It contains no recitals. The substance of this provision has been continued in force by the Rev. Sts. c. 7, § 33, and the Gen. Sts. c. 11, § 39. In the present case, the collector adopted substantially the same form in the warrant which he issued to the sheriff and his deputies. Such a form was held to be sufficient in Cheever v. Merritt, 5 Allen, 563, provided the officer could prove the facts necessary to constitute his authority to collect the tax. This is decisive of the present case, for the only defect here alleged is in the form of the warrant. The case of Williamstown v. Willis, 15 Gray, 427, decided a different point. The action was brought by the town against the officer for not serving such a warrant. It was held that he was not liable to them ; but the question of his liability to the taxpayer in case he had served the warrant did not arise.

Judgment for the defendants.