Walker v. Cook

Ekdicott, J.

The statutes provide that each town shall every year choose three or more assessors; that if a town neglects so to do, it shall forfeit to the use of the Commonwealth a sum not exceeding five hundred dollars, nor less than one hundred dollars, as the county commissioners shall order; and that any person chosen assessor, who shall neglect to take the oath of office, shall forfeit the sum of fifty dollars; Gen. Sts. c. 18, §§ 81-34, 53. These forfeitures must be paid into the treasury of the Commonwealth. Gen. Sts. a. 176, §§ 1, 2. Colburn v. Swett, 1 Met. 232 .

The assessors, therefore, are public officers, in the performance of whose duties the whole community has an interest. Towns have no authority to direct or control them, but all their powers and duties are prescribed and regulated by statute; and, in case they do not perform their duties, the town has no remedy against them. They are not, in any sense, the agents or servants of the town, and the town, by the election of assessors, enters into no contract with them for the payment of their services. Walcott v. Swampscott, 1 Allen, 101 . Hafford v. New Bedford, 16 Gray, 297 . Barney v. Lowell, 98 Mass. 570 . An *579 assessor is entitled to receive, from the town, two dollars and a half a day for his services; and such other compensation as the town may allow. Gen. Sts. c. 11, § 52. St. 1873, c. 156. But, in the case at bar, the town of Natick did not vote any additional compensation. Assuming that an assessor can maintain an action to recover from a town his compensation of two dollars and a half per day, allowed by the statute, yet the right to recover depends upon the statute, and not upon any contract, express or implied, with the town. See Moody v. Newburyport, 3 Met. 431 .

We therefore are of opinion, that the town in this case cannot be charged as trustee, and what .the law provides for the payment of the defendant, as assessor, is neither goods, effects nor credits, entrusted or deposited in the hands or possession of the town, within the meaning of the Gen. Sts. c. 142, § 21.

It was said by Mr. Justice Metcalf, that, “ to constitute the relation of trustee, there must be a privity of contract, express or implied, between the principal debtor in the trustee process and him who is sought to be charged as his trustee, unless there be a statute provision that renders such privity unnecessary. We can go no further than to charge a debtor as trustee of his creditor, when the debt or demand is the ordinary result of express or implied contract.” Williams v. Boardman, 9 Allen, 570 , and cases cited. Burnham v. Beal, 14 Allen, 217 . See also Adams v. Tyler, 121 Mass. 380 .

Trustee discharged.