[G. L. c. 41 §§ 1, 4 charge but of an amount equal to the compensation paid to public officers for work of a similar character." 20 It has been held that it does not lie within the general equity jurisdiction of the courts to restrain the illegal expenditure of public money at the suit of a taxpayer and if a case does not come within the provisions of the statute a court of equity will grant no relief." Whether if the statute had not been enacted a writ of mandamus would lie at the instance of a private person having no other interest than as a taxpayer to prevent the illegal expenditure of public money by a city or town is a question open to some doubt; but it has been held that the statute clearly shows the intent of the legislature to cover the whole subject-matter and to exclude any remedy by writ of mandamus.22 CHAPTER 41 OFFICERS AND EMPLOYEES OF CITIES, Election of Assessors and Collectors SECTION 1. Every town at its annual meeting shall in every year when the term of office of any incumbent expires, and except when other provision is made by law, choose by ballot from its inhabitants the following town officers for the following terms of office: One or more collectors of taxes for the term of one year, unless the town votes otherwise or votes to authorize its treasurer to act as collector. Three or five assessors for the term of three years. Three or more assistant assessors, if the town so votes, for the term of three years. In any case where three or more members of a board are to be elected for terms of more than one year, as nearly one-third as may be shall be elected annually. SECTION 4. A town which does not choose selectmen or assessors shall forfeit such amount, not less than one hundred nor more than five 20 Frost v. Belmont, 6 Allen 152 (1863). 21 Carlton v. Salem, 103 Mass. 141 (1869); Baldwin v. Wilbraham, 140 Mass. 459 (1886); Steele v. Municipal Signal Co., 160 Mass. 36 (1894); Prince v. Crocker, 166 Mass. 347, 358 (1896); Sylvester v. Webb, 179 Mass. 236 (1901). 22 Findlay v. Boston, 196 Mass. 267 (1907). G. L. c. 41 § 20] hundred dollars, as the county commissioners of the county where the town is situated may order. It is not permissible for a town to bid off the office of collector to the person who offers the most favorable terms, but it may give the office to the lowest bidder whom the town will accept; in other words the town may in selecting a collector consider the terms upon which it can have the duties of the office performed provided it does not wholly throw off its obligation of selecting a proper officer and depend entirely upon the bids.1 Towns may elect more than one collector and divide the taxes among the collectors so chosen. A person who has been previously elected selectman and assessor may be chosen collector; there is nothing inherently incompatible in the offices.3 The swearing of the collector and his mode of election may be proved by parol.* In cities which have adopted the commission form of government, both the assessment and the collection of taxes are under the control of a commissioner of finance, elected directly by the people of the city.5 Duties of Selectmen in Regard to Assessors SECTION 20. Selectmen shall, upon the receipt and approval of the bond of a collector of taxes or treasurer, give written notice thereof to the assessors. The selectmen shall be assessors of taxes and overseers of the poor in towns which have not authorized the election of such officers; and before acting as assessors they shall take the oath required of assessors. It was provided by the colony law of 1651 "for preventing such inconveniences as have fallen out upon former assessments" that a meeting should be called in each town in the fifth month of every year, and that the inhabitants so assembled should choose one of the freemen of the town to be a commissioner for the town, who, together with the selectmen, should in the following month make a true estimation of all the real and per 1 Alvord v. Collin, 20 Pick. 418 (1838); Spencer v. Jones, 6 Gray 502 (1856) Howard v. Proctor, 7 Gray 128 (1856). 2 Belgrade v. Sidney, 15 Mass. 523 (1819). 3 Howard v. Proctor, 7 Gray 128 (1856). 4 Howard v. Proctor, 7 Gray 128 (1856). 5 G. L. c. 43, § 67. [G. L. c. 41 § 20 sonal estate of the persons in the town. The commissioners for the several towns in each county were required to meet at the shire town on the first Wednesday of the seventh month to correct and perfect the assessment lists and then speedily commit them for collection to the proper officers.1 Under the provincial government, which began in 1691, it was the practice to enact laws of limited duration, and most of the statutes providing for the election of officers charged with the duty of assessing taxes provided in terms that they should be in force for a short period of years. These statutes were sometimes continued for an additional period as they were about to expire and sometimes re-enacted in the same or in a modified form. By the first provincial statute on the subject, enacted in 1692, the selectmen of each town were empowered to assess the inhabitants and others resident within such town and the lands and estates lying within the bounds of such town for both county and town charges,2 but by the end of the century it became the practice to authorize the election of assessors distinct from the selectmen, if the town so desired. In 1730 more elaborate provision was made for defining the duties of assessors and securing the performance of such duties. Assessors were to be elected in each town to assess the province, county and town taxes. If no assessors were elected the selectmen were to act as assessors; and if neither assessors nor selectmen were chosen by the town the justices of the court of general sessions of the county were empowered to choose three freeholders within the county to act as assessors for the delinquent town. These provisions were retained in substance in the permanent statute relating to assessors and their duties enacted soon after independence was established," and have remained in force ever since, the county commissioners taking the place in this as in other matters of the court of sessions." A town may manifest its intention that the selectmen shall act as assessors either by failing to elect assessors or by voting 1 Anc. Chart. 69. From the earliest period the office of assessor has been elective. 11 Plym. Col. Rec. 42, 2 Mass. Col. Rec. 152. 2 St. 1692-3, c. 28 3 St. 1699-1700, c. 26; St. 1706-7, c. 3. 4 St. 1730, c. 1. 5 St. 1785, c. 50 § § 1, 2. 6 See G. L. c. 41, § 27, providing for the appointment by county commissioners of persons to act as assessors if assessors or selectmen acting as such should fail to perform their duties. G. L. c. 41 § 20] 9 7 expressly that the selectmen shall act as assessors. The statutes authorizing this procedure have continued in force; but in 1920 additional alternative methods of dispensing with the election of assessors at town meeting were introduced. One section of the statute provided that in towns which accepted the section the selectmen should appoint assessors for a term of not more than three years. This section applied only to assessors, was subject to acceptance in the ordinary way, and no provision was made for rescinding the acceptance. Assessors appointed under this section are independent of the direction. and control of the selectmen, but may be removed by the selectmen for cause. At the same time, by another section of the statute, which was applicable to other town officers besides selectmen and could be acted upon only by referendum vote on the official ballot and affirmative action upon which might be rescinded after three years' trial, provision was made for submitting to the voters of a town two questions: (1) whether the selectmen should act as assessors, and (2) whether the selectmen should appoint assessors.10 If a town votes under this section to authorize the appointment of assessors, the selectmen are directed to appoint three or five assessors, who are to act as such, subject however to the supervision of the selectmen, and are to hold office until removed by the selectmen.12 It will thus be seen that a town may cause its selectmen to act as assessors either by failing or refusing to elect assessors or by voting by referendum under the special provisions of the 1920 act that the selectmen shall act as assessors; and it may cause its selectmen to appoint the assessors either by accepting the section of the statute which authorizes such procedure or by voting by referendum under the special provisions of the 1920 act that the selectmen shall act as assessors. 11 In cities, under modern conceptions of the centralization of executive authority, assessors are usually appointed by the mayor, subject to confirmation by the board of aldermen or body having equivalent powers, and are ordinarily subject to 7 Commonwealth v. Wentworth, 145 Mass. 50 (1887). 8 G. L. c. 41, § 20. 9 St. 1920, c. 591, § § 31, 32, now G. L. c. 41, § 25. 10 St. 1920, c. 591, § § 36-47 inc., now G. L. c. 41, § 21. 11 G. L. c. 41, § 26. 12 G. L. c. 41, § 22. [G. L. c. 41 § 24 removal by the mayor for cause.13 The appointment and removal of assessors is not subject to the provisions of law relating to the civil service.11 Term of Assessors and Number to be Chosen SECTION 24. Each assessor in every city or town except Boston shall be elected or appointed to hold office for three years, or until his successor is duly elected or appointed. There shall be three, five, seven or nine assessors in each city, and as nearly one third of the number as may be shall be elected or appointed annually. Originally, assessors, like other town officers, were elected for the term of one year, but in the larger towns it began to be realized that the office of assessor required more technical skill and experience than could be acquired in a single year. In 1878 provisions first appeared to secure greater permanency in boards of assessors, which now apply in every case in which assessors are chosen at all,' but there is nothing to prevent towns from still providing by vote that the selectmen shall act as assessors and electing the selectmen for terms of a single year. Whether the term of assessors is limited to one year or more for the entire membership, or only one member is elected or appointed annually, each board of assessors is charged with the duties prescribed by law, which cannot be performed by their predecessors and cannot arise until the date named for performance, and when their power is once properly exercised it is exhausted.2 3 It is not requisite to the validity of the acts of a board of assessors that all the assessors elected concur therein; the act of the majority is the act of the board. If after the designated number of assessors has been elected, one dies or refuses to qualify and the vacancy is not filled by the town, the remaining members may exercise the full powers of the board.* In proceedings to enforce the payment of a tax, assessed by persons who acted under color of an election by the town as evidenced by its records and who took the official oath as assessors, it is not open to the person assessed to offer evidence that 13 Ayers v. Hatch, 175 Mass. 489 (1900); Johnson v. Mayor of Quincy, 198 Mass. 411 (1908). 14 Ayers v. Hatch. 175 Mass. 489 (1900). 1 St. 1878, c. 255. 2 J. L. Hammett Co. v. Alfred Peats Co., 217 Mass. 520 (1914). 3 Sprague v. Bailey, 19 Pick. 436 (1837). See also, G. L. c. 4 §6, cl. 5. 4 George v. School District in Mendon, 6 Met. 497 (1843). |