Kent, Collector v. Atlantic Delaine Co.

Bradley, C. J. The exceptions in this case raise what we may term, in their nature, two questions. One is, — whether, as a matter of evidence, a public officer, who sues to collect a tax due to the public, is obliged to show that the various statute requisitions have been complied with, which give .him authority *309 to sue for the tax. It is a question as to the order of evidence, and is one which we consider settled in the text-books and in the recent and most reliable authorities. The rule stated in the text-book is, in this language of Mr. Greenleaf (1 Ev. § 92), “ All who are proved to have acted as such ” (that is, as public officers) “ are presumed to have been duly appointed until the contrary appears.” The rule is stated by Baron Parke, in M’Gahey v. Alston, 2 M. & W. 210, “ All public officers who are proved to have acted as such, are presumed to have been duly appointed to the office until the contrary is' shown.” That was a suit by a public parochial officer to recover a sum due the parish. Such is the rule always applied in suits by a public officer, he says, and that in suits against an officer, it has been held sufficient, prima fade, to show that he acted as such. The .reason of the rule we also deem obvious, because the proof which goes to show whether the officer is duly appointed or not, is so open to both parties that either side can have recourse to it; and if we obliged every public officer to go through the exhibition of all that proof, without there being any real question about it, it would not only be very burdensome to him in the discharge of his duties, but greatly embarrass all the judicial remedies. This policy, of the law, upon this subject, is also in conformity with our statutes. Rev. Stats. § 27, p. 112, and § 16, p. 111. We, therefore, hold that in a suit by a collector of taxes, to recover a tax, it is sufficient evidence of his authority thus to sue, prima fade, for him to show that he has acted as such officer in regard to that tax; and it is then open for the defendants to show that he is not duly authorized. The plaintiff, in this case, exhibited such evidence, and the defendants offered nothing in reply. We do not consider that it was error to allow the evidence to go to the jury as sufficient, if uncontradicted, to sustain . a verdict. Another question made in the case was one of a more special nature, applying to this particular matter, and that was, that the statute of 1822, which bounded the town of North Providence, and also the town of Johnston, on the Woonasquatucket river, *310 is intended to apply to the Woonasquatucket river as it then ran, it having been changed somewhat from its original course. We do not take that view of the statutes. This was but the repetition of the old statutes of' partition, carving out of the town of Providence a certain portion to make a town of Johnston, and another portion out of that town to make the town of North Providence, which were passed, respectively, in the years 1759, 1765 and 1767. We deem that the provision of 1822 was intended to be simply a re-enactment of those old acts, and to be considered with the same meaning which the old phrases had. We, therefore, are obliged to decide that point, also, against the moving party, thus overruling the exceptions argued in this motion for a new trial. [A motion was made by the plaintiff, in this case, for an allowance for “ his reasonable trouble in attending to the suit,. to be taxed by the Court in the bill of costs,” as provided in the Revised Statutes, ch. 40, § 28, p. 112. The amount claimed was $278, including a charge of $250 for counsel fees. To the allowance of the items footing at $28, the defendants made no objection ; but against the claim for counsel fees they protested, as one not warranted by any usage of the Court, nor by any statute. This objection the Court sustained, disallowing the charge for counsel fees.]