Johnson v. Colburn

Peck, J. If any part of the tax is void, it being entire, the whole is void. The question then is, had the district the legal right to raise a tax to defray the expense of defending those two suits against the collector, after having defended. those suits by an agent apppointed by vote of the district for that purpose. The question involved in those cases was as to the regularity of the assessment of that former tax, it having been voted for a legal purpose. The statute provides that the district shall be liable to indemuify the collector when made liable “ by reason of the illegality of the imposition, assessment or apportionment of any tax, or any illegality or informality in .the tax bill, warrant or any other precept furnished said collector for the collection of said tax.” In this case there was such illegality in the assessment of the tax and in the rate bill, and it was furnished the collector for the collection of the tax. The event of these suits showed that the collector was made liable by reason of such illegality. Taking the statute literally, the case was one where the district was bound to indemnify the collector. In such case where the district is bound to indemnify the collector, they may do it by taking the defence upon themselves, the district having an interest in the result of the suit, or they may await the event of the suit, and if the collector is made liable, make him good for the damages he has sustained. In most cases it might be bad policy to assume the defence ; because it may be that the event of the suit will be in favor of the collector, in which case the district are not bound to indemnify him. But there may be special reasons why the district may wish to have the question thoroughly tried and they may think they can defend the suit more economically and more succesfully than the collector would, who stands in a position that it may be for his interest to have the suit decided against him, for the sake of being indemnified by the district; since if the event of the suit is in his favor he has no remedy on the district, and must bear the whole expense of defending it, except what he may recover of the plaintiff in taxable costs. In Harrington v. School District No. 6, in Alburgh, 30 Vt. [696] 155, it was decided that the prudential committee, as such, have no authority without a vote of the district, to employ counsel at the expense of the district to defend a suit against a collector. The suit in that case terminated in favor of the collector. But in that case the principle is expressly recognized that the district may do it by vote. In the present case the collector was made liable by reason of the illegality of the assessment, as we understand the exceptions. Unless it can be shown that it was not a case within the statute making the district liable to indemnify the collector, we have no doubt but the district had a right to assume the defence of these suits, and that the tax in question, raised to defray that expense, is legal. The case comes within the language of the statute ; but the irregularity of the assessment for which the collector was made liable, was that the tax was assessed and rate bill made out and issued by the special committee appointed to remove and repair the the school house, under a vote of the district passed at the same time the tax was voted to defray the expense of such removal and repairs. That assessment should have been made and rate bill issued and furnished to the collector by the prudential committee. It is not entirely clear that that statute should be construed to embrace any case except where the rate bill is furnished to the collector by the officers whose legal duty it is to perform that service. But however this may be, this rate bill was made by a committee appointed to expend this tax, and in making the assessment and rate bill they assumed to act as the agents of the district, and must be taken £o have acted in good faith. While the construction of the statute in this respect was undecided, whatever the true construction of it may be, we think there was such an apparent interest in the district in the defence of these suits, that the district was justified in assuming the defence upon their supposed liability to indemnify the collector. If they may do it when their liability to indemnify is in doubt, depending on the event of the suit, we see no reason why they may not do it when such doubt arises upon the construction of the statute. It would be manifestly unjust for the district, after having appointed an agent to defend the suits, to cast the whole expense on him after he has acted on [697] the faith of that vote. But still if that vote was beyond the corporate power of the district, such must be the consequence. We do not intend to decide that the district were or were not bound to indemnify the collector from those suits. It is claimed that the collector exonerated the district by taking a bond of indemnity from that special committee, and that therefore this tax is illegal. That bond was only an additional security, and not a substitute for the remedy of the collector upon the district, if he had any. It cannot affect the question of the validity of this tax. The tax in question being legal, the judgment is affirmed.