Smyth v. Titcomb

Howard, J.

This court has power to issue writs of mandamus to courts of inferior jurisdiction, to corporations and individuals, when it “ may be necessary for the furtherance of justice, and the due execution of the laws.” Rev. Stat. c. 96, § 5. As a court of the highest common law jurisdiction, it would have this judicial sovereignty and general superintendence throughout the State, upon the principles of the common law, if there were no statute upon the subject. It is the only power through which magistrates of inferior jurisdiction, and officers of the law, can be compelled to perform their official duties. The writ is to issue “ in all cases where the party hath a right to have any thing done, and hath no other specific-means of compelling its performance.” 3 Black. Com. 110. But this process cannot be used to review or correct judicial errors. Kendall v. The United States, 12 Peters, 524 ; Ex parte Hoyt, 13 Peters, 279 ; Ex parte Whitney, 13 Peters, 404 ; The People v. The Judges of Dutchess C. P. 20 Wend. 658 ; Kennebunk Toll Bridge, pet'rs, 11 Maine, 263.

Upon the present application for a mandamus, notice has been ordered, and the respondent has appeared, and answered; by agreement, as upon the return of an alternative writ. He substantially admits the facts alleged and proved by the petitioners, [certain errors in the statement being shown and corrected by the proofs offered,] but alleges other facts and conclusions in avoidance, and as reasons why the writ should not issue. The answer is unnecessarily, if not improperly argumentative, but the facts, on which the respondent relies, and from which he draws his conclusions, are stated in conformity with the truth of the case, and in a manner to be readily apprehended.

The duties of the respondent, as treasurer of the toAvn, in reference to school districts, are prescribed and imposed by statute. Upon receiving from the assessors of the town a cer *281 tificate of the assessment of a school district tax, he had the same authority to enforce the collection and payment, as in case of town taxes. R. S. c. 17, § 33. And the collector, upon receiving the commitment and warrant for collection from the assessors, had the same powers, and was held to proceed in the same manner, as in the collection of town taxes. R. S. chap. 17, sect. 32. The assessors, collector, and treasurer are to be allowed by the school district, for assessing, collecting, and paying any district tax, a compensation proportionate to what they receive for similar services respecting town taxes. R. S. chap. 17, sect. 36. On the neglect of the collector to complete the collection and payment of the tax in question, by the time named in his warrant from the assessors, it became the duty of the treasurer to issue a warrant of distress to the delinquent, in the form prescribed by law, to compel the collection; (R. S. chap. 14, sect. 111,) unless he has shown that sufficient cause existed for omitting to conforpi to the provisions of the statute, in this particular, in this case.

The reasons set forth by the respondent, in bis answer, for declining to issue a warrant of distress, assume substantially the form of objections. Waiving, for the present, the question of his right to make these objections, while occupying the position of a ministerial officer, charged with duties, upon the due performance of which, important rights and privileges, of large portions of the community, mainly depend, we will consider the objections as they are presented. For, if it is manifest from an inspection of the proceedings, that the collector has no authority to collect the tax, by reason of its illegality ; or, that the persons assessed, on being compelled to pay it, would have a remedy back for restitution, the court will not grant a process, to enforce a collection that would be fruitless and oppressive.

The first objection is, that the village district, in which the petitioners allege that the tax in question was raised and assessed, was not legally created and established. Every town in this State is authorized and empowered, at the annual meet *282 ing', to determine the number and extent of the school districts within its limits; “and, if necessary, may divide or discontinue any such district; or annex it to any other district in such town, with such reservations and conditions, as may be proper to preserve the individual rights and obligations of the inhabitants thereof.” R. S. chap. 17, sect. 1, 2. Every school district, thus established, “ shall be a body corporate ; with power to sue and be sued, and to hold any estate, real or personal, for the purpose of supporting a school or schools therein ; and apply the same to such object agreeably to the ¡provisions,, of this chapter, independently of the money raised by the town for that purpose.” R. S. chap. 17, sect. 20; Statutes of 1821, chap. 17, sect. 7.

The town of Brunswick voted, at their annual meeting, April 3, 1848, “ that school districts Nos. 1, 2 and 20, be discontinued and to be constituted one district, to be called the village district, provided such shall be the wish of the several .districts respectively.” It will not be doubted that the town had authority, under the statute cited, (chap. 17, sect. 1, 2,) to discontinue and re-construct the school districts, within its limits, with such reservations and conditions as are therein mentioned. But it could not delegate its power, in this respect, derived wholly from the statute, to other corporations. The argument of the respondent’s counsel is conclusive on this point. But while it was competent for the town to disregard the wishes of the districts, in such proceedings, it was equally' competent to consult them. Making the wishes or ■consent of the districts a condition upon which its vote was to become absolute, did not transfer or delegate its authority to them. It would be no less the act of the town, when the vote took effect, because it might have been approved by the districts. The condition was prescribed for its own action, in a matter within its jurisdiction, and was not, in our opinion, designed to surrender its authority to the districts. •

How the wishes of the districts were to be manifested, in order that the vote of the town might take effect, does not appear. Were they to be by votes or by silent acquiescence ? *283 And if by votes, or resolves, in what manner, and to whom to be communicated ? Each district acted to a certain extent, on the subject of the union of the several districts, and though, perhaps, it might reasonably be inferred that they thereby respectively manifested their willingness, and substantially their wish, to form the united district in pursuance of the vote of the town, yet such is not the express language of their votes. Whether, then, the vote of the town became effective to establish the village district, might, upon a strict construction, admit of some question, if the subject rested there. But, as if to place the matter beyond a doubt, the Act of August 3, 1848, c. 140, provided: — “Sect. 1. The vote of the inhabitants of the town of Brunswick, passed at their annual meeting, on the third day of April, one thousand eight hundred and forty-eight, establishing a school district in said town, to be known as the village district, is hereby confirmed, and the said village district shall have and enjoy all the powers and privileges, and be subject to all the duties belonging to school districts, under the laws of this State.

“ Sect. 2. The inhabitants of said village district, are hereby authorized, at their district meeting, to raise such surn of money in addition to their proportion of the school money raised by the town, as may be deemed necessary for the support of the public schools, within said district; but the amount so raised by the district in any year, shall not exceed three-fifths of the amount apportioned to said district, from the school money, raised by the town for the same year.

“ Sect. 3. The money so raised by the inhabitants of said district, shall be assessed and collected in the same manner as is now provided for the assessment and collection of school district taxes.”

Section 4 authorizes the inhabitants of the district to choose their own agent, and to adopt any suitable by-laws, not repugnant to the constitution and laws, for the regulation of the schools in the district. This Act was designed to confirm the vote of the town, and to establish the village district, with enlarged powers and duties, and if constitutional and *284 operative, it clearly had that effect. The objection to the constitutionality of the Act, will be noticed hereafter, and the village district may be viewed as legally constituted.

The next objection is, that the tax under consideration was not legally assessed. It appears by the proof, that the village district met on the 27th of September, 1848, and, among other matters, voted to authorize the board of agents to purchase a lot of land upon which to erect a building for the accommodation of the high and grammar schools, and to erect the building, and to enlarge and repair the school houses belonging to the district, for the accommodation of the primary schools, and to furnish suitable rooms for the high and grammar schools, until permanent accommodations could be provided, and to hire on the credit of the district, “ such sums of money, as may be from time to time needed for the expenditures authorized by the preceding votes, not exceeding five thousand dollars, and to give the necessary evidence of debt therefor.” The last vote was adopted unanimously. (St. 1846, c. 208, § 1.) It also appeal’s that this district, at their meeting, on April 17, 1849, voted to raise by taxation, such sum of money, in addition to their proportion of the school money raised by the town, as would be equal to three-fifths of the amount thus apportioned to them by the town. Act of 1846, c. 208; Special Laws, 1848, c. 40, § 2, 3. This vote was certified to the assessors of the town, by the clerk of the district, (R. S. c. 17, § 29,) but the votes passed at the prior meeting of the district, in September, 1848, were not fully and formally certified, either to the assessors, or treasurer of the town. It is urged that this is fatal to the assessment. (Stat. 1846, c. 208, § 3.) These sections of the statutes are directory to the clerks of school districts, and should be observed by them ; and they would be responsible for the omission of the duties therein prescribed. But if the assessors, without such formal certificate of the votes to raise money, ascertain and assess the amount actually raised by the district, and proceed legally with their assessment, in all other respects, it would be legal and effective, notwithstanding such neglect of *285 duty by the clerk of the district. Williams v. School District in Lunenburg, 21 Pick. 82 .

If, as is contended, the district borrowed the sum of 0325, under their vote of September 27, 1848, for repairing and enlarging the school houses, and not “ for the purpose of erecting a school house, and of purchasing land on which the same may stand,” and therefore for an illegal object; and if this sum was assessed with other money legally granted and voted to be raised, the assessment would not thereby be rendered void. R. S. c. 14, § 88; c. 17, § 30, 31; Stat. 1846, c. 208, § 5, 6. But in fact, there were objects specified in the second and third votes of that meeting, for which the district could legally borrow money under the provisions of the sixth vote. There is nothing in the case, showing whether the money was borrowed for the purpose of erecting a school house, or purchasing land on which to erect it, or for repairing school houses, and furnishing suitable rooms for the high and grammar schools temporarily, unless the subsequent application of it to the latter purposes named should be supposed to indicate the object of borrowing. The certificate of the clerk of the district cannot have that effect, as it embraces only a part of the votes and proceedings of the meeting. And a misapplication of the money by the board of agents would not affect the validity of the assessments.

Another objection taken is, that the special law of 1848, c. 140, is unconstitutional, and that all proceedings under it are void. It does not, however, lie with the respondent, as a ministerial officer, to make this objection. He is not authorized, or required to adjudicate the law. On a summary hearing on a petition for a mandamus, this court will not determine the question of the constitutionality of the law, involving the rights of third persons, but will leave that question to be settled, when properly presented by parties to an action. For this hearing, we assume that the act is constitutional. The People v. Collins, 7 Johns. 549 .

I would remark, however, that this act appears to be one of the class of acts, by which the Legislature has authorized *286 local taxation for local benefits and improvements óf a public nature; and by which counties, towns, parishes, and school districts have been empowered, from the organization of our State government, (to date back no further,) to raise money to erect public buildings, to relieve the poor, and construct bridges and highways, to' support religious worship, to establish and support schools, and to defray incidental charges. The taxation in all such cases, will necessarily be local, and when compared with other portions of the community, unequal ; yet they have been held to be constitutional, and among the ordinary and most useful class of enactments. Norwich v. County Commissioners of Hampshire, 13 Pick. 60 ; Thomas v. Leland, 24 Wend. 65 ; School District No. 1, in Greene, v. Bailey, 12 Maine, 254; Bussey v. Gilmore, 3 Maine, 191; Ford v. Clough, 8 Maine, 334; Hooper v. Emery, 14 Maine, 375; Baileyville v. Lowell, 20 Maine, 178; Kellar v. Savage, 17 Maine, 444.

The petitioners are agents for the corporation, and the district prosecutes this petition through them. The objection, therefore, founded on the supposed want of proper parties, is not available. Waldron v. Lee, 5 Pick. 323 .

We have thus noticed the principal objections; but there are considerations which lie at the foundation of these proceedings, that may be properly suggested at this time. A public officer entrusted with the collection and disbursement of revenue, in any of the departments of the government, has no right to refuse to perform his ministerial duties, prescribed by law, because he may apprehend that others may be injuriously affected by it, or that the law may, possibly, be unconstitutional. He is not responsible for the law, or for the possible wrongs which may result from its execution. He cannot refuse to act, because others may question his right. The individuals to be affected, may not doubt the constitutionality of the law; or they may waive then supposed rights or wrongs ; or may choose to contest the validity of the enactment, personally. Public policy, as well as public necessity and justice, require prompt and efficient action from such offi *287 cers. The State, counties, towns and school districts, must be supplied, in order to accomplish the purposes of their organizations, and the proper officers, in their respective departments, must seasonably furnish the authorized amounts.

The consequences would be ruinous if they could withhold their services, and the necessary means, either from timidity, or captiousness, until all questions of law, which might arise in the performance of their official duties, should first be judicially settled.

The respondent was required by law to issue a warrant of distress against the delinquent collector, without inquiry into the proceedings prior to the assessment and commitment of the tax, and as he has neglected that duty, without sufficient cause, a peremptory mandamus must issue.