
    The Inhabitants of the First Parish in Sherburne vs. Oliver Fiske & others.
    The assessors of a parish are not liable to the parish in an action on the case, for neglecting to assess a tax equal in amount to the sum voted by the parish, and for not issuing a warrant to the collector for the collection thereof; if they acted under the honest belief that they were carrying out the views of the parish,
    A parish cannot maintain an action on the case against its assessors for omitting to take the oath of office.
    This was an action on the case against the defendants, as assessors of the first parish in Sherburne for the years 1846 and 1847, for negligence in assessing the taxes voted by the parish for those years.
    The case was submitted to the court of common pleas, and upon appeal to this court, upon a statement of facts, in substance as follows: The defendants were duly chosen assessors of the parish at the annual meetings thereof in 1846 and 1847, but were never sworn. At the annual meeting of the parish in April, 1847, Richard C. Stone, their minister, addressed to them the following paper signed by him: “ Sherburne, April 6, 1847. To the First Parish in Sherburne. Christian Friends: I hereby make the following communication, relative to my salary: Let the parish raise by vote the same they did in 1845, that is $587.50, and let the tax be assessed upon the same scale as in 1845. Let a yearly subscription be taken of those who worship with us, and added to the assessment; from this sum let the parish receive fifty dollars for incidental expenses, and I will receive the residue. If the sum raised by taxes and subscriptions should exceed my salary and the fifty dollars for expenses, the remainder shall belong to the society. If less than that, the difference shall be my loss. Thus you will perceive by this arrangement, that whoever may withdraw, the taxes for my salary can never be higher than in the year 1845, nor can the society get into debt, except for other purposes. This communication, (if accepted,) shall be in effect until I notify you by your clerk to the contrary, and I withdraw the communication made last year.”
    The parish voted to accept this communication, and that it be recorded on their clerk’s books, which was done; and also voted to grant five-hundred and fifty dollars for the salary of their minister, and fifty dollars for incidental expenses the en suing year; and chose a committee to solicit subscriptions to assist the parish in defraying its expenses.
    It was contended by the defendants, but denied by the plaintiffs, that a similar communication was made to the parish by their minister at the annual meeting in 1846, and duly accepted by them. No record thereof appears on the books of the parish. The parish, at their meeting in 1846, voted to grant five hundred and fifty dollars for their minister’s salary, and thirty-seven dollars and fifty cents for incidental expenses the ensuing year; and that the assessors solicit subscriptions from persons not belonging to the parish, to help defray parish expenses.
    On the 1st of May, 1846, the defendants apportioned on the polls and estates of the members of the parish the sum of $546.87 only, and on the 1st of May, 1847, the sum of $473.70 only, and committed tax rates to the collector, but did not execute and deliver to him any warrant. The sums so assessed were found by multiplying the value of the polls and estates of the members of the parish by the same percentage as that assessed on the dollar in apportioning the taxes of the parish for the year 1845. The amount of taxes actually collected by the collector was only $512.76 in 1846, and only $375.98 in 1847. But the taxes collected, with the subscriptions obtained, exceeded in each year the sums voted for the minister’s salary and for incidental expenses.
    In both of these years, the taxes were assessed by the assessors by order of the parish, agreeably to and in pursuance of the communication of Stone, made to and accepted by the parish as aforesaid.
    
      A. H. Nelson and J. P. Converse, for the plaintiffs.
    
      J. G. Abbott and G. A. Somerby, for the defendants.
   Dewey, J.

The relation of assessors to the town or parish, by which they are elected, is not that of servant and master, or agent and principal, in any such sense as will subject the assessors to a civil action by the town or parish, to recover damages for negligence in the discharge of the public duty devolved upon them by such appointment. Assessors are officers created by statute, with prescribed duties required to ne performed under oath. To some extent such public officers are punishable by indictment, or by penalties or forfeitures that have been by law annexed to the neglect of their duties.

They are also, to a certain extent, liable to individuals for any illegal official acts injurious to them, but this liability has been much modified by the statute provision, making such assessors responsible only for fidelity and integrity on their part.

The views of this court in the case of White v. Phillipston, 10 Met. 108, strongly sustain the position, that public officers are not, in this form of a civil action, held responsible for damages to the town, arising from their neglect of duty, in the absence of any statute giving such remedy to the town. See Trafton v. Alfred, 3 Shepl. 258; Kendall v. Stokes, 3 How. 87; Commonwealth v. Genther, 17 S. & R. 135; Wilson v. The Mayor, &c., of New York, 1 Denio, 595. If liable at all to the town or parish from which they received their appointment, they are so certainly only for want of fidelity and integrity or for not discharging of their duties according to their best judgment and understanding; and upon this ground, the facts stated in the present case would seem to warrant the inference, that as to the manner of making these assessments they acted under the honest belief, that they were making the same in accordance with the views of the parish, as indicated by the facts before them.

There is still another view of this case, alike favorable to the defendants. So far as the action is brought to recover damages against the assessors for not making a larger assessment, and not making a warrant to enforce the collection of the same, the plaintiffs have sustained no damage. Such tax, if made by them, would have been illegal, if, as the plaintiffs allege, and as the facts seem to be, the assessors were not legally qualified by taking the oath required by law; and if the tax had been collected and paid over to the parish, the same might have been recovered back as wrongfully paid. This omission to take an oath of office is not a neglect for which the present action can be maintained. As to assessors of towns, a penalty is provided by law for neglect to qualify as such, but as to the assessors of parishes, it seems no such provision exists, and in neither case does a civil action lie for such neglect. Judgment for the defendants.  