STETSON vs. KEMPTON, 13 Mass. 272

TRESPASS against the defendants, for taking and carrying away the plaintiff's chaise and harness, and converting them to their own use.

The plaintiff had died since the last continuance; and, upon motion of his administrator, he was admitted to prosecute the suit, the defendants opposing.

The cause was submitted to the determination of the Court upon an agreed statement of the facts, in substance as follows. The defendants were duly chosen and qualified as assessors for the town of Fairhaven, for the year 1814, and, on the 8th day of October in that year, in pursuance of the duties of their office, assessed upon the inhabitants of said town a tax, amounting in the whole to the sum of $3719.73, of which sum the plaintiff, being a taxable inhabitant of the town, was assessed the sum of $14.31, for the non-payment of which tax his chaise and harness were seized and sold by the collector to whom the said assessment had been committed, and who was duly qualified to execute the duties of that office, the surplus of the proceeds of the sale, over the tax and legal charges, having been paid to the plaintiff.

Of the said sum of $3719.73, the sum of $1200 was, at a legal meeting of the inhabitants of said town

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holden on the 2d of August, 1814, voted to be raised, "for the payment of additional wages allowed the drafted and enlisted militia of said town, and other expenditures of defence."

At the time when the said sum of $1200 was so voted to be raised, and when the same was assessed as aforesaid, an open war existed between the United States and Great Britain. The enemy were then on the coast, and in sight of said town; and had made an attempt to land, but retreated. The town was greatly and imminently exposed to their ravages, who were then laying waste and destroying the dwellings and other property of the people situated on the coast; and, in the opinion of the inhabitants of the town, it was necessary to raise and expend the said sum of money for the purposes expressed in the vote above recited, and for the immediate protection and defence of the inhabitants of the town; who voted unanimously to raise the same for the said purposes, the plaintiff himself not having been present at said meeting.

Not one half of the said $1200 was in fact expended for the object stated in the said vote; and the residue, so far as collected, has been applied to the legal and necessary expenses and uses of the town.

If, upon these facts, the Court should be of opinion that the plaintiff was entitled to recover, judgment was to be rendered for him, upon a default of the defendants, and his damages assessed by a jury; otherwise, he was to become nonsuit, and the defendants recover their costs.

Spooner, for the plaintiff. The assessment of the money was illegal; and the defendants are therefore liable to the plaintiff in this action of trespass.

The powers of our municipal corporations are wholly derived from our statutes. Towns are authorized by the statute of 1785, c. 75, §7, to "grant and vote such sum and sums of money as they shall judge necessary, for the settlement, maintenance, and support of the ministry, schools, the poor, and other necessary charges arising

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within the same town." Since the date of this statute, the powers of towns have been extended to some other specific objects, none of which, however, can be made to relate to this case.

If the town had the authority necessary in this case, it must be derived from the expression, "other necessary charges arising within the same town." But necessary charges can only intend such expenses as towns are liable by law to pay; not such as they may voluntarily incur, and which have no particular relation to the proper powers and duties of towns.

The duties of towns under the militia laws of the Commonwealth are very particularly described, and their objects have some affinity to the powers exercised by the town in this case. But there is not the slightest pretence from those laws for such a power as was here assumed.

The practice of towns during the revolutionary war may perhaps be cited in support of the act of the town and of the defendants. But that was a period of confusion and anarchy, from which precedents cannot be drawn in times of settled order and government. Towns then, at one time or another, exercised almost all the powers of sovereignty. By the Constitution of the United States, the power of raising and supporting armies, and all necessary concomitant powers, are vested exclusively in Congress. The common defence is committed to that body, and all necessary means for that object. It can, then, make no portion of the necessary expenses of our towns.

If the town, in this case, had no authority to vote and raise this money, the assessment grounded upon it was unwarranted, and the defendants are liable to indemnify any persons whose property has been distrained by their command. In Dillingham vs. Snow & al., [Note p274] it is said, that, if, among other things, the sum assessed has been legally ordered to be assessed, the assessors are not liable to an action of trespass vi et armis. The converse of this proposition must be equally true.

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Nothing can be inferred from the fact agreed in the case, that this money was voted at a legal meeting of the town; or from the other fact, that this grant was necessary in the opinion of the inhabitants of the town, unless their opinion was the measure of their legal authority, which is manifestly absurd.

But it is further stated, that the vote of the town was unanimous; and hence the defendants would infer that the plaintiff is estopped from showing this further fact, that he was not present at the meeting, nor assented to the grant of the money. But the plaintiff was under no obligation to attend a meeting the object of which he might know to be neither necessary nor lawful. If he were estopped on the ground that the vote was unanimous, it must be on the presumption that he was present and assenting, and volenti non fit injuria; and not that the town had authority to pass the vote. It may as well be said, that, unless a person appears and objects the want of jurisdiction on in a court claiming jurisdiction, but in fact possessing none, he will be precluded other from availing himself of the objection at any time, or in any other place.

Davis (Solicitor-General), for the defendants. By the seventh section of the statute of 1785, c. 75, for regulating towns, setting forth their power, &c., the inhabitants of every town, qualified according to law, are authorized to grant and vote such sums of money as they shall judge necessary for certain purposes specified in the act, "and other necessary charges arising within the same town." This act is certainly entitled to a liberal construction; and, if any charges may be deemed necessary, surely the charges arising to meet the first natural duty, that of self-preservation, may well be said to be so. The town, in this case, unanimously thought it of the first necessity. If towns have not the right to defend themselves, and to provide the means necessary for the purpose, in time of pending invasion, it may equally be denied to the Commonwealth; since the public defence expressly belongs to the

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government of the United States. The statute of 1810, c. 107, for regulating, &c., the militia, in the 24th section, enjoins it on the selectmen of towns from which a part of the militia may be detached in case of threatened invasion, &c., to furnish them with certain supplies, under very severe penalty. It would seem, that, under this law, the town might well be justified in providing funds from which the selectmen could procure the requisite supplies. The raising of this money was an act of a legal corporation, of which the plaintiff was a member; and as, by his voluntary absence from the meeting, his consent to the votes and proceedings is legally to be inferred, he can have no right of action for the regular and legitimate consequences of those votes and proceedings.

But, whether the town was legally authorized to vote and raise this money or not, yet, when so voted, the assessors were obliged, by the duties of their office, as prescribed by the statute of 1785, c. 50, to assess it on the ratable polls and estates within the town. They were, in this respect, the mere servants of the town, and were bound at their peril to assess the sum voted. They had no right to question the authority of the town on the point; though they were still answerable to the individual inhabitants for any illegality in the manner of executing their duty. It was no question which they had a right to discuss, whether the town had the authority it assumed to have; any more than they would have, in case the General Court should lay a tax on the several towns within the Commonwealth for purposes or objects not within their constitutional authority, to hesiate or refuse to assess the town's proportion, as stated in the act laying such tax. Towns, as to subjects within their legal powers, are clothed with authority equally binding upon their officers and servants as the Commonwealth is. The assessors, then, cannot be answerable, in an action of trespass, for obeying the commands of their legal and constitutional government.

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If the town had no right by law to raise this money, nor the assessors to assess it, still the remedy of the plaintiff is by action against the town, to recover back so much as he has been unlawfully compelled to pay. More than $2500 of the $3719 assessed by the defendants in the tax complained of were for purposes not to be questioned. It was at most but an error in judgment, that they blended the State tax, the county tax, and so much of the town tax as cannot be questioned, in one assessment. For this the assessors are not liable in trespass, as was in effect decided in the case of Dillingham vs. Snow & al., nor can the plaintiff pretend a shadow of right to reclaim so much of his money as was thus lawfully assessed, and by him paid. Unless the defendants are shown to have conducted malâ fide in this transaction, they cannot, in the eye of the law or of reason, be chargeable as trespassers.

W. Baylies, for the plaintiff, in reply. An unauthorized vote of a town can confer no powers on the assessors of such town, nor can it screen them from the regular consequences of an illegal act. Towns are limited, by the act of 1785, c. 75, in the raising of money, to specific objects enumerated; and, though the phrase, "and other necessary charges arising within the town," is added, this cannot be construed to defeat the whole of the former limitation. By the statute of 1786, c. 10, for regulating parishes, &c., the qualified voters of a parish are authorized to grant and vote such sums of money as they shall judge necessary for the settlement and support of ministers, for the building and repairing of houses of public worship, and all other necessary parish charges. These words are as extensive as those in the former act. Parishes are as much corporations, and have as high and comprehensive an authority over the parishioners, as towns law have over their inhabitants. Yet, in the case of Bangs vs. Snow & al., [Note p277] it was decided by this Court, that parishes have no authority to grant moneys, except for the objects specifically

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expressed in the act above cited, and for purposes necessarily connected with those objects.

As to the form of the action, all the cases show, that, where assessors have not authority to assess the tax complained of, they are liable in trespass vi et armis.

The action being continued nisi for advisement, the opinion of the Court was delivered at an adjourned session of the last March term in Suffolk, holden in July, by

PARKER, C. J. (After briefly stating the facts.) The principal question which arises out of these facts is, whether the inhabitants of the town of Fairhaven had lawful right and authority, in their corporate capacity, to raise money, and to cause it to be assessed upon the polls and estates within the town, for the purpose stated; that is, to give additional wages to the militia, and for other purposes of defence.

The right of towns to grant or raise money, so as to bind the property of the inhabitants, or subject their persons to arrest for nonpayment, is certainly derived from statute. Their corporate powers depend upon legislative charter or grant; or upon prescription, where they may have exercised the powers anciently without any particular act of incorporation. But, in all cases, the powers of towns are defined by the statute of 1785, c. 75.

In relation to the power of raising money, and causing it to be assessed and collected, they are restricted to the cases of providing for the poor, for schools, for the support of public worship, and other necessary charges. The tax which was exacted of the plaintiff must come within the last clause, or it cannot be supported. The phrase necessary charges is indeed general; but the very generality of the expression shows that it must have a reasonable limitation. For none will suppose, that, under this form of expression, every tax would be legal which the town should choose to sanction. The proper construction of the terms must be, that, in addition to the money to be raised for the poor, schools, &c., towns might raise such

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sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to employ, the support and defence of such actions as they might be parties to, and the expenses they would incur in performing such duties as the laws imposed, as the erection of powder-houses, providing ammunition, making and repairing highways and town roads, and other things of a like nature; which are necessary charges, because the effect of a legal discharge of their corporate duty. The erection of public buildings for the accommodation of the inhabitants, such as town houses to assemble in, and market-houses for the sale of provisions, may also be a proper town charge, and may come within the fair meaning of the term necessary; for these may be essential to the comfort and convenience of the citizens. But it cannot be supposed that the building of a theatre, a circus, or any other place of mere amusement, at the expense of the town, could be justified under the term necessary town charges. Nor could the inhabitants be lawfully taxed for the purpose of raising a statue or a monument, these being matters of taste, and not of necessity; unless, in populous and wealthy towns, they should be thought suitable ornaments to buildings of squares, the raising and maintenance of which are within the duty and care of the governors or officers of such towns.

With respect to the defence of any town against the incursions of an enemy in time of war, it is difficult to see any principle upon which that can become a necessary town charge. It is not a corporate duty to defend the town against an enemy. This is properly the business of the state or government, and is the most essential consideration for the obligation of the citizen to contribute to the general treasury. The government is to protect, and the citizen is to pay. By the Constitution of the United States, this duty is devolved upon the national government; and although it may be impracticable, in so extensive a

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territory, to furnish competent security to every section or point, yet it does not follow that corporations of limited powers, like towns, can take upon them selves the duty, and exact money of their citizens for the execution of it.

It cannot be pretended, that a town could lawfully tax the inhabitants to raise and maintain a military force for their protection against an enemy. Such a protection, it is obvious, can only be lawfully given by the state or ruling power; and, if that is not adequate, the voluntary exertions or contributions of the inhabitants must supply the deficiency. Whether, for any extraordinary expense falling upon individuals, in consequence of the inability or neglect of government to afford them security, such individuals may claim to be reimbursed by the public, is a question for others to determine, not for us. Whether any money actually in the treasury, beyond what is needed for the ordinary expenses of the town, and which is unappropriated, may not be disposed of, in pursuance of a vote of the inhabitants, for the common defence of the inhabitants, is a different question from the present, and which we need not now determine.

We confine ourselves to the case before us ; which is that of a tax, founded upon a vote of the inhabitants to raise money for the purpose of giving additional wages to those of the inhabitants who should be called, as militia-men, to do duty, in pursuance of lawful authority. Now, to furnish the quota of militia is no part of the corporate duty of a town, or to pay them. The militia are drafted from those divisions and subdivisions of the citizens which are established by law, without regard to the territory or jurisdiction of towns; and provision is made by law for the payment of such as may be called into actual service. To give additional wages, in order to encourage such as may be drafted, may evince the sense of danger, and the patriotism of a town; but it does not fall within any duty imposed by law, and it is not certain that it would produce any valuable end. For, instead of a uniform and

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equal payment of all those who in other respects are on a footing of equality, it would probably cause jealousies and dissensions, which might be highly injurious to the public service. At any rate, such a tax can, in no view, be considered as laid for the discharge of necessary town charges. For no necessity of incurring the expense exists; and the additional compensation intended is nothing more than a gratuity or bonus, which may well come from individual bounty, but cannot be the subject of legal exaction.

We are satisfied, therefore, that there was no lawful authority to raise the sum in question; and it is important that it should be known, that the power of the majority over the property, and even the persons, of the minority is limited by law to such cases as are clearly provided for, and defined, by the statute which describes the powers of these corporations.

The question is not entirely new; a decision having taken place with respect to the power of parishes to raise money which is entirely applicable to the case before us. For the powers of towns, as well as parishes, are either entirely derived from some legislative act, or defined and limited by the general statutes prescribing the powers and duties of both classes of corporations. In the case of Bangs vs. Snow & al., which was cited in the argument, one question which arose respected the power of a parish to raise by vote a sum of money, and assess it upon the inhabitants, for the purpose of defraying the expense of procuring an act of incorporation; and the Court were unanimously and clearly of opinion, that the parish had no such authority; and refused to hear an argument, saying, it was questioning first principles; for that a parish had power, by statute, to raise money only for the purposes expressed by law, and for expenses incident to such purposes. And it is to be observed, that, after specifying the particular objects of taxation, the statute gives the power of raising money for all other necessary parish charges.

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This doctrine is recognized in a subsequent decision ( 5 Mass. 547), wherein it is held, that the power of raising money in towns and parishes is limited, by statute, to the objects expressly provided for, and such expenses as are necessarily incident. We are entirely satisfied with these decisions, and that the present case is governed by them.

With respect to the unanimity of the vote in town meeting, upon which some stress seemed to be laid by the counsel for the defendants, as evidence of an assent to the vote; this circumstance can have no effect in the present case, as it is agreed that the plaintiff was not present at the meeting. If the maxim, volenti non fit injuria, can apply at all, so as to take away the remedy which any of the inhabitants of the town would otherwise have had for the forcible collection of this tax, it must be applicable to those whe were present and actually assented. Such a constructive assent as is urged from the common principle, that all the inhabitants are presumed to assent to what is done at a regular meeting, cannot be admitted to deprive one of his right; for the presumption is, that towns, when convened, will pass none but legal votes; and to all such the assent of those who are absent may be presumed. Whether the agency of those who were present, in producing the vote, will prevent them from recovering, need not be now decided.

Thus, then, the general question is disposed of; but it is further relied upon in the defence, that the defendants, being, in the assessment of taxes authorized by vote, servants or ministerial officers, ought not to be subject to an action for the mere execution of an official duty.

It is true, that, generally, executive officers are not liable to actions for the regular execution of precepts apparently lawful and which come from an authority which has jurisdiction over the subject. But we cannot view assessors in this light. They are not compellable to assess an illegal tax. They may exercise their judgment on the

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subjects for which the money appears to be voted; and they may refuse to cause the collection to be enforced, if they deem the tax illegal. If they are not liable to an action for causing an arrest, or the seizure of property, for the non-payment of an illegal tax, it is difficult to find any remedy for an injured citizen in cases of this nature. The constable or collector is not answerable; because he acts in obedience to a warrant under the hands and seals of the assessors, who have jurisdiction over the subject, and authority to assess a tax, and to issue their warrant; and it would be dangerous to vest such officers with a right to question the legality of the proceedings which precede the assessment.

If an action would lie against the town, it could only be for the money actually received into the treasury; which, in most cases of distress, would be but a partial remedy. The assessors must, then, be answerable, or there will be a defect of justice. In the cases first cited the action was against the assessors, and no objection was made on that ground; and it may be also remarked, that actions have been uniformly sustained against assessors, when a sum has been assessed which was not within the authority of the town to raise.

It is further objected, that, as part of the money composing this tax was raised for legal purposes, the assessment must be considered so far legal as to support the warrant issued by the defendants; otherwise, they may be held to pay in damages for money which lawfully belonged to the town. But, when a part of a tax is illegal, all the proceedings to collect it must be void; as it is impossible to separate and distinguish, so that the act should be in part a trespass, and in part innocent. [Note p283] This point may also be considered as settled in the two cases cited; for in both those cases the greater part of the sum assessed was for lawful purposes. Whether the damages may not be diminished by the jury, in proportion to the sum which shall appear to be a lawful

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subject of taxation, may be considered in the inquiry which is yet to be had by the jury.

Whether it would be wise to extend and multiply the objects for which towns may be authorized to raise money is a question for the legislature, and not for us, to decide. It is sufficient now, that they are limited by law; and some limitation is undoubtedly just and necessary, to prevent the minority from being at the disposal of the majority. Whether that defence against the casualties of war which is not within the ordinary reach of the superintending government should be committed to the numerous corporations which exist in the State, or should be left to the voluntary and patriotic exertions of Individuals, or the retribution of the government, is a question for statesmen, and not for judges, to decide, in the present state of the law; towns now being the creatures of legislation, and enjoying only the powers which are expressly granted to them. It may be well, also, to consider, that, in case of invasion, it is very seldom that any corporate property is put in hazard; the destruction which the enemy may cause being generally directed against the property of individuals, who are at liberty to operate, and dispose of their own money, in such manner as shall seem to them best, to avoid the danger.

Defendants defaulted.

NATHANIEL STETSON vs. WILLIAM KEMPTON and others.

13 Mass. 272

July, 1816

Bristol County