
    Frederick Raynsford v. Theodore I. Phelps.
    
      Damages for injury from false retu/rn by tax-collector.
    
    A public officer is liable to private individuals for injuries resulting to the latter from his failure to perform ministerial duties in which the latter have a special and direct interest. He is also liable' for a failure to perform duties of a judicial nature, if he neglects them maliciously.
    One who had purchased the equity of redemption of certain mortgaged lands, after a tax had been assessed thereon, had certain personal property on the land, but the tax collector falsely returned nulla bona, and the tax became a lien on the land from which 1 the owner of the mortgage had to redeem after foreclosure. 
      Held that tho latter had a right of action at common law'against the collector for injury resulting to him in being compelled to redeem from the tax sale.
    A law prescribing who shall be liable for the payment of taxes, and whose property may be levied on therefor, impliedly forbids the, tax collector to seize the property of others, or by act or omission make the tax a charge on it, and the owner is at liberty to buy and sell in reliance upon the officer’s implied duty toward! him and to understand that the latter is not protected by his commission unless he keeps within the powers given by it. t
    Taxes can generally be enforced only by the statutory remedies, and payment made by the mortgagee of land does not necessarily give him a right of action as against the mortgager as for money paid to his use, since the mortgagee would not have been personally liable for the payment of the tax, and the mortgager’s failure to pay it would only have rendered the property subject to seizure while the warrant was good for their collection.
    Error to Kent.
    Submitted April 14.
    Decided April 21.
    Trespass on the case. Plaintiff brings error.
    
      C. G. é W. W. Hyde for plaintiff in error.
    One who is individually injured by a violation of official duty has a remedy concurrent with the public prosecution for such violation, Cooley on Torts 7, 81;. Plumer v. Smith 5 N. H. 554; Boston etc. B. R. Co. v. Dana 1 Gray 83; Pettingill v. Rideout 6 N. H. 454; Cross v. Guthery 2 Boot 90; Patton v. Freeman 1 Coxe 113; Piscataqua Bankv. Turnley 1 Miles 312; Story v. Hammond 4 Hammond 376; Lofton v. Vogles 17 Ind. 106: 14 Am. Dee. 245; a ministerial officer charged by statute with the performance of a certain duty in which an individual has a special interest, is liable if he omits it, Clark v. Miller 54 N. Y. 534; Cooley’s Liability of Public Officers 3 S. L. Bev. 531; Shearman’s Bedf. Neg. § 156; 1 Addison on Torts 30; Lane v. Cotton 1 Salk. 17; Henly v. Mayor of Lyme 5 Bing. 91; Keith v. Howcurd 24 Pick. 292; Adsit v. Brady 4 Hill 630; Hutson v. Mayor 9 N. Y. 169; Robinson v. Chamberlain 34 N. Y. 389; Kendall v. United States 12 Pet. 524; Farr v. Thomson 11 Wall. 139; Reed v. Conway 20 Mo. 22; Kendall v. Stokes 3 How. 87; a township treasurer is liable for a false return, Cooley on Taxation 196; and for taking one’s property for another’s tax, Henry v. Gregory 29 Mich. 69; and for failing to account for the surplus after selling property for more than the tax, Blancharrd v. Dow 32 Me. 557; an assessor is liable to one injured by an illegal assessment (Mygatt v. Washburn 15 N. Y. 316; Clark v. Norton 49 N. Y. 246; Freeman v. Kenney 15 Pick. 44; Hyman v. Fiske 17 Pick. 231) even if he acted by authority, Stetson v. Kempton 13 Mass. 272.
    
      Simonds & Fletcher for defendant in error.
    Townships and township officers are not liable for injury to an individual caused by neglect to keep the highways or other township property in safe condition, Detroit v. Blackeby 21 Mich. 24; Hill v. Boston 122 Mass. 344; Young v. Com’rs 2 N. & MeC. 537; Bartlett v. Grozier 17 Johns. 439; Lynn v. Adams 2 Ind. 143; Dunlap v. Knapp 14 Ohio St. 64; a highway commissioner was not accountable for maliciously deciding on the necessity of a highway across a man’s premises, Sage v. Laurain 19 Mich. 137.
   Cooley, J.

It was decided in Rowning v. Goodchild 2 W. Bl. 906 that a public officer having ministerial duties to perform,- in which a private individual has a special and direct interest, is liable to such individual for any injury sustained by him in consequence of the failure to perform such duties. It was an officer connected with the postal service who was held liable in that case, and the decision is followed in this country. Teall v. Felton 1 N. Y. 537; s. c. in error, 12 How. 284. Election officers have been held liable on the same ground (Ashby v. White Ld. Raym. 938: 1 Salk. 19; Lincoln v. Hapgood 11 Mass. 350; Jeffries v, Ankeny 11 Ohio 372); and so have commissioners of highways (Hover v. Barkhoof 44 N. Y. 113; Hathaway v. Hinton 1 Jones N. C. 243); and so have inspectors of provisions (Hayes v. Porter 22 Me. 371; Nickerson v. Thompson 33 Me. 433; Tardos v. Bozant 1 La. Ann. 199); and so have tax and other officers (Amy v. Supervisors 11 Wall. 136; Tracy v. Swartwout 10 Pet. 80; Brown v. Lester 21 Miss. 392; Bolan v. Williamson 1 Brev. 181). It is immaterial that the duty is one primarily imposed on public grounds, and therefore primarily a duty owing to the public: the right of action springs from the fact that the private individual receives a special and peculiar injury from the neglect in performance, which it was in part the purpose of the law to protect him against. It is also immaterial that a failure in performance is made by the law a penal offense. Hayes v. Porter 22 Me. 371. The exceptions are of those cases in which the functions of the office are judicial, or partake of the judicial. Sage v. Laurain 19 Mich. 137; Goetcheus v. Matthewson 61 N. Y. 420; Bevard v. Hoffman 18 Md. 479; Harrington v. Commissioners etc. 2 McCord 400. But even in these 'cases the officer is responsible if he acts maliciously. Gordon v. Farrar 2 Doug. (Mich.) 411; Bennett v. Fulmer 49 Penn. St. 157; Gregory v. Brooks 37 Conn. 365; Strickfaden v. Zipprick 49 Ill. 286.

The principle is as familiar as it is sound. It is nevertheless insisted that the present case is not within it. Tax collectors, it is truly said, are chosen because the machinery of government must be kept in motion, and to that end it is essential that the public revenue should be collected. They are chosen, therefore, and their duties imposed on public grounds, not on private. If through any negligence on the collector’s part the State loses a portion of its dues, the officer is responsible to the State for the loss; but it is denied that he owes any duty to individuals, except to abstain, as every citizen must, from committing trespasses on their rights. The question of negligence in the performance of public duties must always concern the public only.

But conceding that the law creates the office of collector in order that public revenues may be collected, it does not follow that it leaves that officer at liberty to disregard private interests in their collection. When the law prescribes who shall be liable for the payment of taxes, and whose property may be levied upon therefor, it at the same time by implication forbids the officer to seize upon the property of others, or by act or omission make the tax a charge upon such property. The implied prohibition creates a duty in favor of the- person whose property is the subject of it, and he is at liberty to buy and sell in reliance upon the duty being performed. He has a right to understand that the officer is commissioned by the law to act only with due respect to the rights of individuals, and that if he acts otherwise and causes special injury, he disobeys his commission and is not within the protection the commission might otherwise give.

The plaintiff owned a mortgage on lands on which a tax was assessed for the year 1874. A warrant was issued for the collection of this tax, and was placed in the hands of defendant for service. The plaintiff’s case is that during the life of this warrant, and while the defendant held it, there was personal property upon the land, belonging to one French, who had purchased the equity of redemption after the first Monday of May and before the first Monday of December of that year, from which it was the duty of defendant under the express provisions of the statute to make collection. Comp. L., § 1006. Instead of performing this duty he falsely made return of no goods, whereby the tax became established as a lien upon the land, and the land was sold for its satisfaction. Meantime the plaintiff had foreclosed his mortgage and become owner of the lands, and was compelled to redeem from the tax sale.

Is the plaintiff wronged by this false return? We think he is. It was his legal right that the goods of French should be sold to satisfy the tax, and the law always intends that legal rights shall be respected. Moreover he alone suffered injury from the false return. The public suffered nothing, for the lien on the land remained and was enforced, and the only injurious consequence of the misfeasance in public office was that the tax was collected from one man when the command of the law was that it should be collected from another.

If there is no wrong without a remedy, then it would seem that this action should be supported, for the defendant is the only wrong-doer. It may be suggested that the plaintiff might have a cause of action against French for money paid to his use; but this is not clear. The statute does not make the purchaser of land under such circumstances personally liable: it only renders his property subject to seizure during the life of the tax warrant. Payment by defendant, did not release the property of French, for it was released by the neglect of the officer which is complained of in this suit. The general rule is that taxes can only be enforced by means of the statutory remedies. Crapo v. Stetson 8 Met. 393; Shaw v. Peckett 26 Vt. 482; Camden v. Allen 26 N. J. L. 399; Packard v. Tisdale 50 Me. 376; Carondelet v. Picot 38 Mo. 125. But whether or not the rule applies here is immaterial, as this action in either case is well grounded in common law principles.

The judgment must be reversed with costs, and the cause remanded, with leave to defendant to withdraw his demurrer and plead on payment of the costs of demurrer.

The other Justices concurred.  