#### * Dennis Libby *versus*Josiah Burnham and Others.

Assessors cannot lawfully add more than five per cent to the amount of any tax they are authorized to assess.

To include in such addition the commissions for collecting, if exceeding five per cent., is illegal. '

Assessors may not assess a highway tax as a money tax.

If assessors issue warrants for several taxes, some of which are legal and others illegal, and deliver them to the same officer, and he seizes and sells divers chattels, when one would be sufficient to pay the legal taxes, they are liable for such seizure and selling, as trespassers.

This was an action oí trespass for taking and carrying away two oxen of the plaintiff’s.

At the trial upon the general issue, before *Wilde,*J., at the last October term, in this county, it was admitted that the oxen were taken and sold, by the collector of taxes for the town of *Durham,*by virtue of three warrants and lists of assessments, signed by the defendants as assessors of said *Durham*for the years 1813, 1814, and 1815; and of another warrant and list of assessments, made by said *Burnham*and two other assessors for the year 1811.

No objection was made to the assessments for the year 1815 ; and as to the other years, it appeared in evidence that the taxes committed to the assessors to assess for the year 1811 amounted to the sum of 1817 dollars 22 cents, and that the sum assessed by the assessors amounted to the sum of 1966 dollars 16 cents; that the taxes for 1813 amounted to the sum of 2488 dollars 47 cents, and that the sum assessed by the assessors for that year amounted to 2701 dollars 15 cents. It also appeared that, in the year 1814, the sum of 400 dollars was included in the assessments, which had been voted to be raised by the town for the repairs of highways, and to rebuild a bridge then recently carried away; — for the payment of all which assessments, the oxen mentioned in the plaintiff’s declaration had been sold.

Upon this evidence, the judge instructed the jury that the two taxes, or assessments, for 1811 and 1813, were illegal, as the assessors had exceeded their jurisdiction — they having no authority to make assessments exceeding the amount of the taxes committed to them to assess, except five per cent., as authorized by statute. And as to the assessments for 1814, the jury were instructed that those assessments were void ; inasmuch as the said sum of 400 dollars ought to have been assessed by them, payable in labor and materials, for the repairs of the highways, and should have been committed to a surveyor of highways for collection, and not to the collector of taxes.

*134*If these instructions to the jury were substantially correct, the verdict returned for the plaintiff was to stand; otherwise, it was to be set aside, and a new trial was to be granted.

*Whitman*and Mitchell, for the defendants.

The excess of the assessments for 1811 and 1813 arose from the assessors’ adding the fees or commissions allowed by the town to the collector. This is a common practice in most of our towns, and indeed is necessary, in order to meet this legal claim of the collector.

By statute of 1785, c. 75, § 7, towns are authorized to raise moneys for certain specified objects, and for “other necessary charges arising within the same town.” Under this authority, the town of *Durham*voted to raise, and the defendants were accordingly bound to assess, the sum of 400 dollars, necessary for the immediate rebuilding of a bridge, then lately taken off by a flood. Had these measures not been taken, the town would have exposed themselves to a criminal prosecution for their neglect, besides other inconveniences to which they must have been liable. This, then, was a *necessary charge arising within the town.*

There is no statute provision for building or repairing bridges, by a tax to be paid in labor and materials, as there is for the reparation of highways; yet towns are bound, at their peril, to maintain them. Indeed, the general provision of the statute (1) for repairing the 'highways and townways, by taxes payable in labor and materials, can relate only to the common, annual repairs. When, by force of tempests or other destructive accidents, bridges, causeways, or highways, are suddenly broken up, other methods must, of necessity, be resorted to, or very great inconveniences will be felt.

It must be known to the Court that, in all our populous towns, the taxes for the repairing of highways, &c., are assessed and paid in money, ,as other taxes are ; and the necessary labor and materials are procured by the surveyors with money drawn from the town treasury. This practice has *been always acquiesced in, and- intolerable mischief would arise from an adjudication that such taxes are illegal.

By the fourth section of the statute last referred to, a special provision is made for repairing the highways, in case the sum appropriated for that object proves inadequate, and for paying the expense thereof out of the treasury. But the money must be assessed and collected before it can be paid out of the treasury.

As the tax for 1815 was legal, and without exception, neither thei *135assessors nor collector are liable in trespass *vi et armis.*(2) And if the assessment of 400 dollars for the repair of the bridge, in 1814, should be held invalid, the collector was still bound to collect so much of that and of the other assessments as was legal, and had a right to seize the plaintiff’s oxen, upon his neglecting to pay the same. The statute (3) has provided another and a sufficient remedy, in making it the duty of the collector to pay over the surplus of the sale to the person whose property is distrained. This remedy is still open to the plaintiff.

*Fessenden,*for the plaintiff.

Since the statute of 1785, c. 50, it is certainly unlawful for assessors to add more than five per cent, to the sum they are authorized to assess. The statute is peremptory; and if assessors exceed this rate, the assessment is void, and they are trespassers. The commissions to collectors form part of the estimate of the sum to be raised, and are never to be added.

The assessment being void, the plaintiff has a right to recover back the whole in damages. It was out of his power to tender so much of the sum demanded of him as the defendants had a right to assess, and he is still liable in case they should hereafter make a legal assessment of the same taxes. That he is entitled to the whole sum taken from him, was settled in the case of *Stetson*vs. *Kempton & A.,*and in the cases there cited.

Bridges and causeways are part of highways ; and, on a review of the statutes on the subject, the distinction set up by the defendants will be found to have nothing in it. The case of sudden accidents, like that supposed in this * case, will be found sufficiently provided for by the statute of 1796, c. 58, § 5.

(1)

*Stat.*1786, c. 81.

(2)

*7 Mass. Rep.*236, *Little*vs. *Greenleaf &*Al.—5 *Mass. Rep.*547, *Dillingham*vs *Snow &*Al.—10 *Mass. Rep.*118, 119, *Colman & Al.*vs. Anderson.—13 *Mass. Rep.*272, *Stetson*vs. *Kempton Al.*

(3)

*Slat.*1785, c. 70, § 2.

Parker, C. J.,

delivered the opinion of the Court. We are of opinion that assessing more than five per cent, above the sums voted by the town to be raised, makes the assessment illegal and void; and the assessing that highway tax as a money tax is also in direct violation of the law, and for that cause, also, the assessment is void.

It is impossible to distinguish between that part of a tax which might have been rightly assessed, and that for which no authority is given, so that the assessment should be valid for one part and void for another. This point was settled in the case of *Stetson*vs. *Kempton &A.**(a)*

With respect to the objection that, as one of the taxes was le*136gal ly assessed, and the property was seized as well on that as the others, — although it struck us at first with some force, we are satisfied it is not sound. If no more property had been taken than was sufficient to satisfy the legal tax, then, perhaps, trespass would not lie, although the warrants for the other taxes had been used at the same time in taking the property. But here the property was avowedly taken as sufficient to satisfy all the warrants, and it was sold under the authority of all. If there was no trespass in the original taking, on account of the legal warrant, yet the proceeding to sell under all was an abuse of authority, and renders those who commanded the act liable, as trespassers, for the whole. If the property taken had been an individual article, in its nature not separable, although of more value, perhaps trespass could not have been maintained. But here two oxen were taken, and they were palpably more than ought to have been taken to satisfy the legal warrant. The collector must, therefore, have acted under a void authority in seizing the oxen ; and the defendants, having commanded that act, are chargeable in this action.

The amount of the tax for 1815, which was legally assessed, we understand, makes no part of the damages * recovered; and we cannot see any tenable ground upon which any reduction of the damages can be allowed. When the property of a man is taken without lawful authority, he has a right to the value of that property, at the least in damages. A tax is no debt, until it is assessed and demanded; and if not legally assessed, it is the same as if never assessed at all; so that *to*reduce the damages, on the ground that the plaintiff owed a part of the money claimed from him, would be unauthorized by legal principles.

What, then, is to be done, when assessors have neglected then duty or gone beyond their authority ? Is the whole tax to be lost ? There is no need of this. The tax may be re-assessed, or the town may renew their vote to raise the money. And it is better that they should suffer this inconvenience than that the property of the citizen should be taken from him, to satisfy arbitrary exactions, limited by no rule but the will of assessors. Strictness in these particulars is wholesome discipline — as it will, from motives of interest, produce care and caution in the selection of town officers, and diligence in them when chosen.

*Judgment on the verdict,*

(a)

*Bangs*vs. *Snow,*1 *Mass. Rep.*181.