Beach v. Furman

Per Curiam. Whether Sarah Furman, being a woman and a freeholder, was liable to be assessed to work on the highways, is a question which does not necessarily arise in this case. Admitting her not to have been liable to be assessed, yet as she was assessed, and a complaint in writing made to the justice by the overseer of highways, of her default, the justice was not to inquire into the legality of the assessment, but was bound, by the act, forthwith to issue his warrant of distress, and the constable was equally bound to execute it. The act is peremptory, and leaves no judicial or discretionary power, either with the justice or constable, [231] and so the statute was understood by this court, in the case of Bouten v. Neilson. (3 Johns. Rep. 474.) That case, however, as well as the case of Lawton v. Commissioners of Highways, (2 Caines’ Rep. 179.) proves, that the party aggrieved by such a proceeding is not without redress, for these summary proceedings may be removed into this court, and reviewed by a certiorari, to be directed to the justice, or overseer, as the case may be. Both the justice and the constable acted ministerially in this case; and a mere ministerial officer is not responsible for the issuing or the execution of process, so long as the authority under which the process is awarded, had jurisdiction over the subject matter. Now, the overseer of the highways was the person to designate, in the first instance, and to deliver to the commissioners, the names of the persons liable to be assessed; and he was also the officer to adjudge what persons were in default, and to demand the warrant. In the exercise of this authority, the overseer may have returned the names of persons not liable to assessment, and he may have adjudged persons in default, who were not in default. The remedy for the party so aggrieved, cannot be against the justice and constable, concerned in issuing and executing the warrant of distress, for they had no alternative but to obey, as the law did not give to either of them the light to inquire into the legality of the assessment, or the truth and sufficiency of the allegation of the default. The remedy must be either by an action against the overseer, or by removing the assessment, or the proceeding under it, into this court, so that the same may be quashed. It would be against the obvious principles of justice and policy, to make the ministerial officers act, in a case like this, at their peril, when they have no right to judge, and are required to act. They are only responsible as trespassers when they act under the authority of a person who had no jurisdiction in the case, or when they execute that authority irregularly. Judgment reversed.