Kellogg v. Higgins

The opinion of the court was delivered by Bennett, J. The decision of the questions, raised in this case, must depend upon what we consider to be the sound exposition of the 13th section of the act passed Nov. 17th, 1825, relating to the duties of listers. This section provides, that when any person thinks he is assessed by the listers in a greater sum than is just and reasonable, such person may apply to the selectmen, or a majority of them of the same town, and make disclosure on oath before such selectmen, any one of whom is empowered to administer the oath. It is then made the duty of the selectmen to certify the disclosure, and lodge it with the town clerk, and this shall be taken by the listers as the true sum in which the person shall be assessed. The result of this question must depend upon the character of the duty to be performed by the selectmen, whether they act in a judicial capacity, or barely ministerially. By the statute of 1809 it was made the duty of the person himself, to give in his list, the amount of money [244] which he had on hand, and obligations, &c., over and above owed, and, if he put in his list too small a sum, it was competent for the listers to increase the assessment in such sum as, in their opinion, would be equal to 6 per cent. on ^¡.)e amount such person had neglected to insert in his list. The second section of the act of 1809 further provided that if any person felt himself "aggrieved by such assessment, he might have the same relief, and in the same manner as is allowed in other cases of assessment, under the eighth section of the act of 1797, to which the act of 1809 was in amendment. The eighth section of the act of 1797 provided, that if any person felt himself aggrieved, he might apply, in the first instance, to the listers for redress, and it was made their duty to grant such relief as they should judge just and reasonable ; and, in case they should neglect or refuse to grant such as was satisfactory, application might be made to a justice of the peace of the same town, who, with two or more of the selectmen of the town, should consider and determine the case as they should judge just. Under this statute, it is manifest that either board of relief acted in a judicial capacity. By the 12th section of the act of 1825, 2 Vol. 75, ir is made the duty of the listers to make a list of all property, by them appraised, or assessed at a certain rate per cent., with all other assessments by them made accoyding to their discretion or judgment, including money on hand and debts due, &c. By this section the selectmen of the town are constituted a board of relief, except in the case of money on hand and debts due, and bank and insurance stock, and may reduce the assessment of the persons applying to them to such sum as will, in their opinion, be in due proportion to the assessment of other inhabitants of such town, as made by the listers, and the assessments, so corrected by the selectmen, or a majority of them, and by them certified and returned to the town clerk, shall be accepted by the listers and set in the list accordingly. It is also manifest that the duties of the selectmen, under this section, are of a judicial character. It is evident, that the legislature, by excepting the assessments for money on hand, debts due, and for bank and insurance stock from the operations of the 12th section of the act of 1825, and from the provisions of the 13th section itself, intended to put these on different ground, as it respects the mode of relief to [245] persons aggrieved, from what is provided in other cases. ti „ . , ,. By the 13th section, any person who thinks himself assessed by the listers for money on hand and debts due, or for bank or insurance stock, in a greater sum than is just and reasonable, may apply to the selectmen, or a majority of of the same town, and make disclosure on bath before such selectmen, any one of whom may administer the oath to such applicant. It is then made the duty of such selectmen to certify such disclosure and lodge it with the town clerk, and this disclosure shall be taken by the listers as the true sum in which such person shall be assessed. The form of the oath requires a true and faithful disclosure of all bank and insurance stock, all moneys on hand, and of debts and obligations whether due, or thereafter to grow due, over and,. above what was then due and owing from the person making such disclosure. It seems that in this case the plaintiff had been assessed by the listers of the town of Benson in the sum of $5,333, as for money on hand and debts due, which assessment had been returned and lodged with the town clerk, and that afterwards, feeling himself aggrieved, he applied to the selectmen, having made and subscribed a written disclosure, in which he states explicitly, that his money on hand and debts due him do not exceed the debts he owes ; and one of the selectmen administered to him the oath in due form of law. This is all the law requires. The selectmen were not to judge of the truth of the disclosure, and there is no reason why they should be permitted to institute an inquisition over the plain tiff and compel him to disclose all the particulars in relation to the situation of his money, what individuals may owe him, and to what amount, or to whom he may be indebted; and, indeed, such a course would manifestly, and especially in a master merely of revenue, be highly improper. The disclosure of the party, feeling himself aggrieved, must be conclusive, and if it is wilfully false the remedy can only be by indictment. The 13th section does not, in any way, constitute the selectmen a board of relief, and they aré not vested with authority to judge as to the truth or sufficiency of the disclosure. In what point of view, then, can their duties be regarded, but as of a ministerial character ? The conscience of the party, [246] seeking relief from what he views an unjust assessment, is appealed to, and according to his disclosure he is to be assessed. The general disclosure, made by the plaintiff, is all that the nature of the case requires, is all the government ought to demand. It is urged that if the duty to be performed by the selectmen is ministerial, there was no occasion that the disclosure should be made to the selectmen, or a major part of them; and that it would be sufficient if made to the selectman who administers the oath. This may be so, but it is a non seqwitur, that the duty is judicial. It cannot change the character of an act which in the nature of-things is purely ministerial. It is probable, that in this particular the same form of expression is retained inadvertently by the legislature, as is contained in the 12th section, where, most clearly, it was the intention of the legislature to give the selectmen judicial powers. It follows, from this view of the subject, that the defendants are responsible to the plaintiff for such damages as he has sustained in consequence of their neglect to notify and deliver to the town clerk his disclosure, which he had subscribed in writing and sworn to in due form of law, and had delivered into their hands for that purpose. The judgment of the county court must, therefore, be affirmed.