
    
      Martin Bates vs. John Hazeltine and Hiram Chipman.
    
    
      1't is not sufficient for him who justifies a taking' of property under authority as Collector of a School District, to show the" warrant and rate-bill, but he must show his appointment as collector, the laying of the tax, the appoint* . ment of the committee, and the organization of the District.
    Unless the authority of the collector is shown, an asssistant who acts by his com* mand, will not be justified.
    This was an action of trespass for breaking and entering the defendant’s house, taking away his goods, &c. At the trialbefore the County Court, the defendants severallypleaded the general issue with notice, and offered in evidence, by way of justification, a warrant signed by a justice of the peace, directed to the defendant Hazel-tine as the collector of the JVorth Centre District in Essex, for the collection of a certain tax specified in the rate-bill accompanying and attached to the warrant, and purporting to be assessed and signed by the committee for said district, in which the defendant was assessed, and evidence tending to show that the property was taken by virtue of said warrant; and that the defendant Chip-man acted by command, and as the assistant, of the defendant Hazeltine ; which evidence was admitted by the court. No evidence was offered of the organization of the district, the vote laying the tax, or of the appointment of the committee or collector.
    The plaintiff’s counsel contended, and requested the court to charge the jury, that the defendants were bound to show by the return of the collector on the warrant, that the property taken by virtue of said warrant, was legally disposed of. But the court charged the jury,' That inasmuch as the plaintiff's action was commenced immediately after the act complained of, and before the collector could legally proceed to advertize and sell the property, it was not incumbent on the defendants to sbow that the property taken was af-terwards disposed of according to law to satisfy the tax. The jury thereupon returned a verdict for the defendants. To which decision of the court, and that admitting the rate bill and warrant, unaccompanied by the other evidence, die plaintiff excepted.
    The cause now came before the court on a motion for a new trial, founded on exceptions taken by the plaintiff as above mentioned, to the decision of the County Court.
    The counsel for the defendants contended, That by the 3d. section of the act for the support of schools, — New. Stat. p. 5.9Q,— it is made the duty of justices of the peace, upon application, to issue warrants to the district-collector for the collection of taxes • assessed by the district. It is contended by the defendants that issuing the warrant is a judicial as well as a ministerial act. It is obviously proper that there should be some tribunal by which it may be determined that a tax is legally assessed before the issuing of a warrant to enforce its collection. Neither the committee nor the collector can, with propriety, constitute this tribunal,, both being in some way interested. It is only for the purpose of settling tire legality of the tax, that the law requires a warrant to. be signed by a justice of the peace. Had it not been the intention of the statute to establish such a tribunal, authority might and would have been given to the committee to issue a warrant themselves, without the intervention of a magistrate. — 8 Johns. 69, Ward vs. JBaJcer. — 10 Mass. 105, Coleman et al. vs. Anderson. The same observations apply to the justice, as to the necessity of showing the appointment of the collector. The justice is to be satisfied by proper evidence, before issuing the warrant, that the person therein named as collector, has been legally appointed. But the issuing tire warrant is, at least, prima facie evidence of the. appointment. It has been decided that if a warrant be issued directed to one by name, as constable of a town, such direction is sufficient evidence of the appointment of the person named. — 1 D. Chip. Rep. 110, Broughton vs. Blackman and Bearsdley.
    
    
      The counsel for the plaintiff contended that the court erred in admitting the warrant and tax bill to go to the jury without first shewing the organization of the district, the appointm'ent of the committee and collector, and the vote laying the tax 5 and cited the Stat.'p. 590.
   TurNeb, J.

delivered the opinion of’the court. The questions presented by the case, are 1. Whether the rate-bill and warrant under which Hazeltine acted, was sufficient without any other-evidence for his justification; and 2. How far Chipman was justified in acting under Haz (dime’s command.

It is a general rule, that wherever a person justifies a taking under any authority whatever, he must show every matter and part of the authority under which he jqstifies. — Sw. Dig. 656. Whatever limitations maybe prescribed to this rule in cases where tire authority is derived from courts of general jurisdiction, it is clear that inregard to courts of inferior and limited jurisdiction, every fact necessary to give them jurisdiction, must be substantiated. — 1 Bur. 377.—4 Bur. 2244.—2 Mass. R. 213.—What is true of such inferior courts is also true of the doings of corporate bodies, erected by law for private and local purposes. These corporations though they derive their existence and their powers from public laws, are created for private purposes. Their organization under the laws which authorize it, their proceedings and the doings of those who claim to act under them, cannot be known judiciallytill proved; 18 Mass. R. 112.—andmust be shown to be inpursuance of the law which creates and authorizes them ; otherwise they are toally void.

The statute, p. 590, points out the steps by which aschool district is to be organized, its powers, and those of its officers, the mode in which those powers are to be exercised, and its officers appointed. Upon application of three or more of the inhabitants of an unorganized school district to the select men of a town, for a school meeting, they shall notify the same by posting up a notification in writing in one or more public places within the district, specifying the time andplace of holding the meeting, and the business to be done; the notification to be posted up at least seven days before the time specified. The inhabitants shall then have power to choose a moderator, clerk, collector and committee. The duties of these officers when thus legally appointed 'are prescribed; and after its organization, power is given to the district meeting, 'with ¿ue notice, &c. to impose taxes in a particular manner, and for purposes specifically designated. When the tax is thus regularly laid, the collector is-vested with the same powers for its collection that are given to the collectors of town taxes, under a wai’rant to be issued by any Justice of the Peace, upon application, authorizing him to collect the same by the time agreed on by the votes of the inhabitants.

It is the duty of the court to recognize the existence of this, as of all other general laws ; but whether its provisions have been pursued in any given case, is not a matter of judicial cognizance till it is shown to them by legal proof. The organization of the district must be shown; for unless the district was organized in the mode prescribed by statute, there could be neither district, committee, tax nor collector ; this is not to be presumed; for here the reason of the case applies,-4 Mass. Rep. 643, Bridge vs. Ford, —in which Paesons, C. J. declares, nothing is to hepresumed ■ in favor of the jurisdiction of an inferior magistrate, as it is not general but limited, and given by particular statutes.” The appointment of the committee must be shown; for the assessments under the tax and the making up of the rate bill, is a duty expressly imposed upon the committee ; and therefore, unless the committee were legally appointed, the rate bill and warrant could not have been valid. It is necessary to show the laying of the tax; for unless the tax was legally imposed, the collector-could have no right to collect it; and he would not be protected in the enforcement of such illegal tax, although tire rate bill and warrant in virtue of which he acted, were apparently legal.-3 Cranch,331, Wise vs. Withers.—M'Lane vs . Stewart, cited in Swift's Evid. 359.—13 Johns. 444, Suydam et Wickoff vs. Keyes. This last case was an action of trover for four barrels of flour sold by a collector of a school district, in virtue of a “warrant under lire hands and seals of the trustees directing him to collect from each of the inhabitants of the district, the several sums of money written opposite to their names in tire tax-list annexed to the warrant, and in case of neglect or refusal, to levy on tire goods and chattels of the delinquent.” The plaintiffs were non-residents of the district who are by law exempted from school taxes. In this case the court decided that the warrant was no jhslifi-cation of the collector. If lire warrant would be no justification to the collector for the enforcement of a tax on one exempted from its operation, a fortiori, it would not justify him in enforcing a tax illegally laid. The defendant should have shown his appointment as collector. The rate bill and warrant offered in evidence, though directed to him as sychj do not prove this. Those, proceedings merely establish their'Own existence, but not any-extrinsic and anterior fact whatever'.*' Whether he is or is not.’collector, must be proved by the records of the clerk of tire district, whose office it is to keep such records. The fact is of such a nature that it admits of proof by no other evidence. In the case of Thayer vs. Stearns18 Mass. Rep. 111. — it was remarked by Parker, C. J. in reference to the evidence by which an assessor must show his appointment— “ The assessors acting by virtue of authority from the town, must like other agents, prove their authority. They must show that they were legally chosen and duly qualified to act. And it is necessary in order to make out this point, that they should show Ürat the inhabitants of the town were legally assembled at the meeting when they were chosen. This must be shewn by the records.” So in the case of a constable — Chip. 109. The statute has not specifically designated tire duties of the clerk of the district; but that the object of creating such an office was to record the proceedings of the district meetings results ex vi termini. That such evidence should exist, was essential to tire protection of the collector, and the security of the public. There can' he no hardship therefore, in requiring the production of such evidence to establish the facts already decided to be essential to the defendants’ justification.

2. It would seem to follow that if the defendant, Hazeltine, had failed to show his authority to act in the character of collector under which he justifies, Chipman cannot justify in acting by his command. For .if Hazeltine had no authority to communicate, Chipman is a trespasser. But this point is settled by authority. If the act of the officer be illegal, or if he have no authority to act, all concerned with him in the act complained of, are liable to the action of the party aggrieved. — 6 Mod. 68, 140. In the case of Oystead vs. Shed et al. 12 Mass. Rep. 506, B. & W. Varnum justified, the taking of property exempted from attachment, by the command of a constable ; and the court decided that as the officer had no right to take the property, the assistants could not be justified.

It is contended on the part of the defendants, that the justice, in signing the warrant, acted judicially; and that being a tribunal ' to decide on the legality of the prior proceedings, the court cannot re-examine them. The case of Wood vs. Peake, 8 Johns. 54 is. cited in support of this position. But it is apprehended there is no analogy between that and the present case. By a law of the state of New York, if any constable chosen by the town, shall refuse to serve, the town is authorised to fill such vacancy ; but if file town does not within 15 days after fill it, then three justices are authorised and required to fill it j and if the person so appointed shall refuse to serve, he shall forfeit a penalty of ‡62,50. The action was trespass against Wood the constable, who gave in evidence an appointment as constable, made by three justices in pursuance of the provisions of the statute. The plaintiff offered to prove that the constable first appointed never did refuse to serve. The court decided against the admissibility of this evidence; that the appointment by the justices was a judicial act; “for the Justices must first determine and adjudge that there is a vacancy in the office, and that the town neglected to fill it up ; that the appointment therefore remained valid till set aside or quashed on certiorari. In this case it is obvious that the justices were required to determine judicially several facts, before they could malte this appointment. But in the present case the justice signing tire warrant has nothing to determine. He is merely authorised to sign it “on application.” The act of signing does not necessarily involve any obligation or authority to examine into the organization of the district, the laying of the tax, or tire appointment of the committee or collector, and if the statute had intended to make the justice a tribunal to examine and decide on these subjects, it would have made such examination a prerequisite to his signing, tire warrant. For these reasons, itis considered that his signing the warrant was a mere ministerial act, imposed upon the justice to authorise the constable to proceed in .tire collection of the tax, because it must be signed by some one — but deciding nothing as to the legality of the prior proceedings. His authority in this instance resembles that of a justice who takes a recognizance and issues '■ execution.—8 Mass. Rep. 7, Alby vs. Ward. In the case cited from Chipman, 109, after deciding that the appointment of a constable must be shown, which was the only point in the cause, the court were said tcf be of opinion that if the warrant had been directed to the constable by name, it would have been sufficient. This is in contradiction to what was before decided, and is a mere obiter dictum. The relevancy of the other case cited is not perceived.

Mien and Hunt, for the plaintiff.

Thompson and Bailey, for the defendants.

The view which the court have taken of this case renders it unnecessary that any opinion should be given on the other point raised in the bill of exceptions — that is, whether it was incumbent-on the defendants to show that the property taken by virtue of the warrant was legally disposed of ?

On the whole it is considered that the verdict ought to be set aside and a new trial granted.  