
    Edward Sparrow versus Wilkes Wood.
    The being assessed in the last parish tax, to the amount required by the statute, of 1786, c. 10, is the only evidence of a right to vote in a parish meeting.
    This was an action on the case, brought against the defendant as moderator of a parish meeting in the town of Middleborough, for refusing to receive the plaintiff’s vote, he being, as he alleged, duly qualified to vote at said meeting.
    At the trial upon the general issue, before Jackson, J., at Plymouth, October term, 1819, it appeared that the * plaintiff lived within the territorial limits of the parish, [ * 458 ] and in the town tax next preceding the time of the meeting, viz., for the year 1815, he was assessed 80 cents for his poll, and for his real and personal estate 4 dollars, 7 cents. The meeting was held on the 3d of January, 1816. The plaintiff was assessed in the parish tax in the year 1809 ; after which there had been only two parish taxes previous to the said meeting, viz., one in 1812, and one in 1814, in neither of which the plaintiff was assessed. In the spring of 1812, the plaintiff removed to a part of the parish remote from the meeting-house, and near to a Baptist meeting-house, in which last he and his family from that time usually attended public worship. He once contributed to the repairs of this Baptist meeting-house; but the society worshipping there never assessed any legal tax. In a conversation with the collector for the year 1812, respecting his being omitted in the tax for that year, he said it was right, and that he ought to be omitted.
    The defendant was chosen moderator at a meeting on the 1st of January, 1816, and the said meeting on the 3d was by adjournment. Between those two meetings the defendant had a conversation with the plaintiff, in which he stated to him the rule by which he intended to govern himself as moderator, viz., not to permit any one to vote, who had not been taxed in the then last parish tax for his poll, and in a sum equal to two thirds of a poll tax for his estate; excepting such as had arrived at full age, or had removed into the parish, since the last tax, and who were otherwise qualified to vote. After some conversation and examination, the plaintiff appeared satisfied with the course proposed by the defendant.
    In 1777, and again in 1792, the parish passed a vote, directing the assessors to omit in the taxes all who were sincere Baptists; and the assessors were accustomed to omit such as they understood had joined the Baptist society, * without re- [ *459 ] (pairing any certificate of that fact, and without a vote by the parish in each particular case.
    
      The defendant contended that the rule which had been applied to meetings for the choice of governor and members of the legislature, was not applicable in this case; because, in those elections, the right to vote depended on the fact of the voter’s residence, and the value of his estate. But, in parish meetings, the right depended on the fact of his having paid certain taxes; and that, if the plaintiff had been wrongfully omitted in the assessments for 1812 or 1814, and bad thereby been deprived of the privilege of voting, his remedy was against the assessors, and not against the moderator.
    A verdict was taken for the plaintiff under the directions of the judge; and the defendant moved for a new trial, on account of the said directions, and because the verdict was, as he alledged, against law.
    
      Eddy, for the defendant,
    relied on the provision of the " act for regulating parishes and precincts, and the officers thereof” , by the first section of which, the voters in parish meetings are those inhabitants of each parish who shall pay in one tax, exclusive of the poll or polls, a sum equal to two thirds of a poll tax. This is a very distinct requisition from the constitutional qualification of voters at elections of state officers, which consists only in the possession of a certain income or estate. The proof, too, is as distinct in the two cases, as the requisitions. In parish meetings the moderator is to be governed wholly by the assessors’ list, which is, for this purpose, required to be filed with the clerk. He has no room for the exercise of judgment or discietion in the case. His office is purely ministerial.
    If the plaintiff has been injured, his remedy lies only against the assessors, by whose omitting to insert him in the tax list, he was deprived of his franchise. But the case shows he has suffered no injury ; for he approved of the omission, acknowledging it to be right.
    [ * 460 ]
    * H. Cushman, for the plaintiff.
    The payment of any tax, whether state, county or town, of the amount required, is the legal qualification of voters in parish meetings. If this be not so, then where there are no parish taxes, there can be no voters; and many parishes have funds, the income of which is sufficient to defray all parish charges. Many towns constitute a parish, in which case there is no other than a town tax ; and where there are more than one parish in a town, this Court intimated, in the case of Thurston vs. Little & Al. 
      , that where there is no parish list, the assessors may govern themselves by that of the town.
    In this case, as there had been no parish tax for the year preced ing, and as property is very fluctuating, the town tax was the best guide for the moderator. The plaintiff might not have been a qualified voter in 1814; but the case shows that he was abundantly qualified in 1815.
    If the plaintiff had a right to vote, that right was infringed by the defendant. The mistake of the assessors furnishes him with no defence. The plaintiff need not prove, a malicious intention in the case. It is enough that he has been deprived by the defendant of a valuable privilege, secured to him by the constitution and law of the land; and such is the right of voting in parish affairs,—often the most interesting concern in which a citizen can be engaged.
    
      
      2) Stat. 1786, c. 10
    
    
      
       3 Mass. Rep. 433.
    
   Per Curiam.

It appearing that the plaintiff was not assessed in the tax next preceding the meeting, at which he was refused permission to vote, the moderator was justifiable in such refusal. He is to govern himself, in this respect, solely by the list of assessments ; and it would be a breach of duty m him, to admit one to the privilege of voting, who is not taxed to the amount prescribed by the statute. If a person be improperly omitted in the tax, the assessors are liable; but if, in an action against them, it should appear that the omission was fairly intended for the * benefit [ * 461 ] of. the party, and that he assented to it, in that case the assessors would not be liable.

There is a marked distinction between the right claimed by the plaintiff in this case, and the right of voting for" state officers according to the constitution. In the latter case, the right to vote depends upon the having property to a certain amount. If an inhabitant has the requisite amount, he has a constitutional right which he cannot be deprived of. But, in town and parish affairs, the franchise depends wholly upon taxation; and the moderator of a meeting can govern himself by nothing but the assessment list.

Plaintiff nonsuit.  