
    The Inhabitants of Barre versus The Inhabitants of Greenwich.
    To gain a settlement in the sixth mode described in St. 1793, c. 34, $ 2, a terson must dwell in a town the whole year in which he serves as a town officer.
    In St. 1785, c. 75, § 4, respecting vacancies in town offices, the word removal moans a removal from the town.
    Town officers must be inhabitants of the town in which they are chosen, and they cease to be officers when they cease to be inhabitants.
    Assumpsit for expenses incurred in the support of Luthei Freeman and his family, who were paupers. The only question in the case was, whether Freeman had gained a settlement in Greenwich in virtue of having served one whole year in the office of constable, or of collector of taxes, of that town, according to the sixth mode of gaining a settlement estabi shed by the statute of 1793, c. 34.
    It appeared by the report of the chief justice, and by a statement of facts agreed on by the parties, that Freeman was elected constable, and also collector of taxes, of the town of Greenwich, on the 6th of April, 1817, and was duly qualified. In January or February, 1818, he went into the State of Vermont, and was absent eighteen or twenty days ; during which time his sureties for the collection and payment of the taxes became uneasy, and, by authority from the selectmen, obtained from his wife the tax bills which had been committed to him for collection. No person however was chosen constable or collector in his stead. On the 18th of March, he served the warrant for the annual meeting of the town in April 1818. On the 20th of March, he removed with his family to Barre, intending to reside there, and he has resided there ever since. This was on Saturday. On Monday following, he passed through Greenwich on his way to Northampton, where he went to return a venire which he had previously served ; and in coming back he remained a night, and the greatest part of the next day, at Greenwich, but performed no official act there. Freeman testified, that he had, after removing to Barre, made arrangements to go back to Greenwich to -collect the taxes, and that he intended to bv there at the meeting on the first Monday of April, but was prevented by sickness, and did not go until the week following. After this, and after another collector was chosen, he pro-needed to collect the taxes remaining due on his bills.
    If, on these facts, the Court should be of opinion that Freeman gained a settlement in Greenwich, the defendants were to be defaulted; otherwise, the plaintiffs were to become non-suit.
    The cause was argued in writing.
    Mills, for the defendants,
    contended that a constable, or collector, must be an inhabitant of the town at the time of his election, and during his continuance in office. This is to be inferred, in respect to a constable, from the various and important duties which the law imposes on him ; some of which no person but a constable can perform ; 4 Inst. 265; Anc. Charters, &c. 82; St. 1785, c. 75, §§ 2, 6; St. 1795, c. 41, § 3; St. 1788, c. 30, § 6; St. 1807, c. 140; and it is so at common law ; 3 Atk. 184; 12 Mod. 256. The word removal, in St. 1785, c. 75, § 4, means a removal from the town, and by that section a vacancy is instantly created by a removal, with an intention of changing residence, as much as by death, or non-acceptance. Freeman did not actually serve one whole year, either as a constable, or a collector, that is, he was not capable of serving whenever his services might be lawfully required, during a whole municipal year. Actual residence during the whole year is necessary, in order to gain a settlement. Paris v. Hiram, 12 Mass. Rep. 262; Billerica v. Chelmsford, 10 Mass. Rep. 394; Boston v. Wells, 14 Mass. Rep. 384. The collection of part of the taxes after the year had expired, when Freeman had ceased to be an officer, cannot affect the case.
    
      Sliepley and Houghton, for the plaintiffs.
    The case shows, that fourteen days before the expiration of the municipal year, Freeman removed from Greenwich to Barre, an adjoining town, intending to reside there, and that he has resided there ever since. But it appears, also, that he did not intend to give up the offices he held. The distance of his dwellinghouse from Greenwich was not so great as to prevent him from attending .o his duties, and no evidence was offered of his neglect to perform any official act whatever. The St. 1793, c. 34, does not require a residence within the town to gam a settlement by the sixth mode, whereas by the fourth, fifth, eleventh and twelfth modes, residence is expressly required. It is the intention of the statute, that the holding the office and discharging its duties should give the officer a settlement, in the same manner as by the seventh mode the settling and ordaining a minister of the gospel give him a settlement ; whether such officer or minister has his family in the town or not. In Belgrade v, Sidney, 15 Mass. Rep. 524, the Court say, <£ The object of the legislature was to give a settlement to such of the inhabitants, as by the suffrages of the town should ap pear to be persons worthy of confidence, and of sufficient substance to have all the rights of habitancy.”
    From an examination of the statutes, we have come to the conclusion, that it is not necessary that a constable, at the time of his election, or during his term of office, should reside with his family within the town where he is chosen. It is sufficient if he lives near enough to attend to the duties of his office. The St. 1785, c. 75, § 2, which provides for the election of town officers, requires that the selectmen at the time of their election should be inhabitants of the town, but there is no such limitation in regard to other town officers ; and the omission of the limitation must have been by dtf'ign. Freeman however was an inhabitant of Greenwich at the time he was chosen, and so continued until a few days before the next annual meeting, and discharged all the duties of the offices during the whole time, unless the act of removal vacated the offices. The law imposes a penalty, when a person chosen constable refuses to serve. Would a removal beyond the line of the town vacate the office, and free him from the penalty ? There is nothing in the nature of the office its elf, that should cause it to become vacant by a removal, and we find no judicial decision on that point ; but the practical construction, so far as we have .known it, has been, that the officei continues in such offices after a removal from the town, i* the distance will admit of it. The only case in which a col - lector of taxes vacates his office by removal, is pointed out in St. 1783, c. 10, § 1, which provides that a town may choose a new collector, when the collector has removed, or in the judgment of certain officers is about to remove, out of this Commonwealth before the time set in his warrant to make payment to the treasurer therein mentioned, or when the time of payment has elapsed and the treasurer has thereupon issued his warrant of distress. This is decisive, that a removal to a town within the Commonwealth does not vacate the office. Unless both offices held by Freeman became vacant, his settlement is in Greenwich.
    In regard to St. 1785, c. 75, § 4, we are not disposed to question, that whenever a town officer removes to such a distance that it is impossible for him to perform the duties of his office, another may be chosen in his stead ; but we believe it to be equally certain, that in some cases a removal does not create a vacancy. Before the case in 3 Atk. 184 can be considered as relevant, it must be shown that a coroner in England holds his office by the same tenure as a constable or collector does here. That case shows, however, that living out of the county does not of itself vacate the office of a coroner, and that he continues to hold it until he is removed by competent authority. In the present case, even if the town of Greenwich had the power of deciding that a vacancy had taken place, (which is denied,) that power was never exercised. The expressions in the statutes cited on the other side merely determine, that many of the duties of a town officer are to be performed in the town to which he belongs as such officer ; which may well be, although he lives in a neighbouring town. As in some instances the same individual acts as deputy sheriff in two counties, by the appointment of the respective sheriffs, although he cannot have his dwelling-place in more than one. The case of Paris v. Hiram does not favor the defendants’ positions, for there the constable was confined in jail thirty-four miles from the town of Hiram, so that it was impossible for him to do any official act. The cases of Billerica v. Chelmsford and Boston v. Wells arose under the twelfth and fourth modes of gaining a settlement, in which the statute expressly requires residence. It is agreed, that the collection of a portion of the taxes by Freeman, after the year expired, could not affect the question of settlement in any other way, than by showing the understanding of the defendants and Freeman, that his offices were not vacated. That Freeman’s absence during his journey to Vermont, and his disability by reason of sickness to attend the April meeting, did not prevent his acquiring a settlement, is manifest from the case of Paris v. Hiram, and St. 1785, c. 46, § 15.
   The opinion of the Court was read by Putnam J., at April term 1823, as drawn up by

Parker C. J.

The facts presented by this report leave only one question to be decided, which is, whether the pauper » can be legally holden to have served one whole year in thf office of constable or collector in the town of Greenwich. His settlement depends altogether upon that point. He was duly chosen to the office of constable in that town on the 6th of April, 1817, and at the same time was chosen collector of taxes, and was duly qualified to exercise those offices. He must be considered to have remained in office until his removal to Barre, which was on the 20th of March of the same municipal year. He went with his family to Barre and intended there to reside. His journey to Vermont in the winter can have no effect on the question, for it cannot be pretended, that a town officer cannot leave his town for business or pleasure without vacating his office ; or that the service of a whole year in such office, in the terms of the statute, means, that there shall be no day or week in the year when he is not in the exercise of bis office.

The principle settled in the case of Paris v. Hiram, cited in the argument, is undoubtedly the true one, that the officer must, during the whole time for which he is elected, be capable of executing the duties of his office, that is, that no disability shall fall upon him by reason of his own acts, or in consequence of his own conduct. The case, therefore, is narrow ed to this ; whether, by reason of his removal from Greenwich to Barre, with intention to dwell in the latter town, he ceased to serve in the office of constable, or collector, for the residue of the year after the 20th of March. And I think we must consider this in the same light as if he had removed to a town at the distance of a hundred miles from Greenwich, for even then there would be no physical impossibility of his performing all the duties which might have occurred between the 30th of March and the expiration of his official term. Was, then, the office vacant by his removal into Barre before the expiration of the year ? It certainly might have been so considered bv the town, and they might have supplied the office uy the choice of another constable. It is expressly provided by the statute of 1785, c. 75, § 4, that this may be done in case of removal; and we think the word removal here used means the removal of any officer from the town, not his removal from office by any act of the town, for that statute does not authorize any removal from office. And the same word is undoubtedly used in the same sense in the fifth section of the same statute, wherein it is provided, that when, by reason of death, removal or resignation of selectmen, a major part of those originally chosen shall not remain in office, a major oart of the survivors, or such as shall remain in office, shall have the same power to call a town meeting as a major part of the number first chosen.

It is contended by the plaintifis’ counsel, that town officers, particularly constables, need not be inhabitants of the town, and it is true, that this is not expressly required, but we have no doubt that such was the intention of the legislature. Every man who is eligible to a town office, is obliged, under a penalty, to serve when chosen, unless he comes within some of the exemptions. Certainly it was not intended to subject an inhabitant of another town to this penalty, he being eligible to a similar office in his own town, and liable to a penalty if he refuses to serve there. Besides, it must be conceded, as a general principle, that where the legislature has provided that certain officers shall exist in any particular community, the members of that community are alone eligible to those offices ; they are in fact the representatives of that community, in that department of municipal government which they are appointed to discharge. That community alone are judges of the qualifications of such officer, and can alone command his services. It would seem to follow, that when he ceases to be a member of the community, he ceases to be its officer. In the rase oefore us, the removal was but to a short distance, and the term of office had nearly expired, but it is the same in principle, as if the distance had been greater and the time longer. It is the fact of removal alone into another town, ,01 the purpose of being an inhabitant there, which vacates the office If this officer had removed, in one month after he was chosen, to the District of Maine or the county of Berkshire, there could be no question but that the town might fill up the vacancy ; and so they might when only eighteen or twenty days were left of the year. In both cases there would be a vacancy ; and that determines the point of settlement. No doubt the legislature considered the residence for a year as part of the ingredients of habitancy, and therefore required a service in office of one whole year. The argument drawn from the provision in St. 1783, c. 10, § 1, in case constables or collectors of taxes remove, or are thought to be about to remove, out of the Commonwealth, has considerable force in maintaining the position, that a removal into another town does not vacate their office ; but the object in this provision was to prevent such collectors from going beyond the reach of legal process, without first securing the town, and to prevent them from proceeding in the collection of taxes with an intent to abscond. Besides, the power to supply vacancies happening from death, resignation or removal, was given by statute two years after the former provision, is more general in its nature, and ought not to be restricted by it. Upon the whole, we have come to the conclusion, though not without difficulty, that to serve one whole year in a town office, within the meaning of the statute, so as to acquire a settlement thereby, means that the officer shall live within the town that year, so that the office shall all the time be filled in such a manner that a new choice could not be made, and that the removal into another town, with his family, with intention to remain there, creates a vacancy, so far as to interrupt the settlement wdiich might otherwise be gained. His doings after the commencement of a new municipal year, or his intentions after removing to Barre, we think, have no bearing on the question.

Plaintiff's nonsuit. 
      
      
        Acworth v. Lindeborough, 9 N. Hamp. R. 295.
     