G. L. c. 41 §§ 24A, 25A, 28] in the election of assessors there was a failure to comply with the election laws; for the persons who appeared of record as assessors were at least assessors de facto and it is well settled that the validity of acts of de facto officials cannot be called in question in suits or proceedings to which they are not parties.5 Assistant Assessors SECTION 24 A (St. 1921, chap. 208). If in the case of any city there is no provision of law for the election or appointment of assistant assessors and, in the judgment of the assessors, assistant assessors are necessary, or if, in the judgment of the assessors, the provisions of law with regard to the election or appointment of assistant assessors in any city, or action taken thereunder, have not provided in any year for a sufficient number of assistant assessors, the mayor subject to confirmation by the city council, or the assessors, as the city council may determine, may appoint as assistant assessors such number of registered voters of the city as the appointing authority may deem necessary. Such appointments shall expire at the end of the calendar year in which they are made. SECTION 25 A (St. 1921, chap. 14). In towns which accept this section the assessors may appoint and remove citizens of the town as assistant assessors, who shall, subject to the supervision of the assessors, act as assistant assessors of the town and shall have all necessary powers therefor. In this section, the word towns shall not include cities. SECTION 28. Assistant assessors shall, in their respective districts, assist the assessors in making lists of persons liable to be assessed for poll taxes in such districts, in publishing and transmitting lists of persons so assessed, in estimating the value of the real and personal estate in such districts, and in the performance of such other duties as the assessors require. Provision was first made for the appointment of assistant assessors in 1809 and there has been no substantial change in the statutes relating to their duties since that date.1 The recent statutes which provide under some circumstances for the appointment of assessors by the selectmen make like provisions for assistant assessors; and in 1921, as appears above, provision 5 Sudbury v. Heard, 103 Mass. 543 (1870). 1 St. 1809, c. 127. 2 G. L. c. 41, § § 25, 26. [G. L. c. 41, §§ 29,30 was made for the appointment of assistant assessors by the assessors under some circumstances. Oath of Assessors SECTION 29. Any person chosen to assess taxes or to determine or to assist in determining the value of property for the purpose of taxation shall, before entering upon the performance of his duties, take the following oath: I, having been chosen to assess taxes and estimate the value of property for the purpose of taxation for the town (or city) of for the year (or years) ensuing, do swear that I will truly and impartially, according to my best skill and judgment, assess and apportion all such taxes as I may during that time assess; that I will neither overvalue nor undervalue any property subject to taxation, and that I will faithfully perform all the duties of said office. If he neglects to take such oath before entering upon the performance of his duties, he shall forfeit not more than fifty dollars. The oath of the assessors is to be construed in the light of all the other provisions of law for the assessment of taxes; and when a statute requires property to be valued in a certain way, the assessors are bound to follow the statute, even if they know that in fact an overvaluation will result.1 Penalty for False Valuation SECTION 30. Any person chosen to determine the valuation of property for the purpose of taxation who, in order that the tax payers may escape payment of their just proportion of any state or county tax or in order to evade any law limiting municipal indebtedness or the rate of taxation to a percentage of valuation or for any other fraudulent or corrupt purpose, knowingly fixes the valuation of any property at a smaller or greater amount than its full and fair cash value, or who causes an abatement to be made otherwise than is provided by law, shall be punished by a fine of not more than one thousand dollars, or by imprisonment for not more than six months, or both. The "full and fair cash value" at which assessors are required to fix the valuation of property is a phrase difficult to define, 1 Sears v. Nahant, 215 Mass. 329 (1913). G. L. c. 41 § 37] and its application is somewhat dependent upon the class of property to be valued. The phrase is used in other portions of the tax statutes with the same significance as here and its meaning is discussed elsewhere in this work.2 The liability of an assessor in a civil action brought by a person claiming to be wrongfully assessed is also discussed in another chapter. It has been held that an assessor is not liable in an action brought against him by the town for assessing taxes in such a way that the town suffers financial loss, at least when there has been no want of integrity and fidelity on his part, but only ordinary negligence. A civil action by a town against a person chosen as assessor does not lie on account of his failure to take the oath of office.5 Collection of Taxes by Treasurer SECTION 37. A town treasurer acting as collector of taxes may appoint deputies, who shall give bond to the satisfaction of the selectmen for the faithful performance of their duties; and such collector and deputies shall have the powers of collectors of taxes. A treasurer acting as collector may issue his warrant to the sheriff of the county or his deputy, or to any constable of the town, directing them to distrain the property or take the body of any person delinquent in the payment of taxes, and may proceed in the same manner as collectors. The statutes do not require a collector to perform all his duties in person, and he may, under certain conditions, appoint deputies.1 A treasurer who acts as collector is given like powers by the above statute. A treasurer who acts as collector may issue his warrants to the sheriff of the county or his deputy or to any constable of the city or town requiring them to collect any or all taxes due;2 and a collector may issue his warrant to like officers requiring them to collect a particular tax by distress or arrest; and a town may vote to give its collector the 1 Massachusetts General Hospital v. Belmont, 233 Mass. 190, 205 (1919). 2 G. L. c. 59 § 38, infra page 267. 3 G. L. c. 59 § 87, infra page 314. First Parish in Sherburne v. Fiske, 8 Cush. 264 (1851); Lincoln v. Chapin, 132 Mass. 470 (1882). 5 First Parish in Sherburne v. Fiske, 8 Cush. 264 (1851). 1 G. L. c. 60 § 92, infra page 395. 2 G. L. c. 60 § 90, infra page 393. 3 G. L. c. 60 § 34, infra page 340. [G. L. c. 41 §§ 38,39 power of a treasurer in this regard. A constable so employed must look to the collector and not to the town for his compensation.5 Authorization to use Powers of Treasurer SECTION 38. A town may authorize its collector of taxes to use all means of collecting taxes which a town treasurer may use when appointed a collector of taxes. It has been held that the vote authorized in the statute is justified by an article in the warrant "to elect all necessary town officers for the ensuing year."1 The means referred to in the statute is doubtless the issuance of warrants to the sheriff of the county or his deputy or any constable of the town requiring them to collect any or all taxes due.2 In the absence of such a vote the collector has the power of delegating to a sheriff or constable only the duty of collecting taxes assessed upon designated persons.3 Constable as Collector of Taxes SECTION 39. If a person appointed to collect taxes in a town refuses to serve, or if no person is elected or appointed a collector of taxes, the constables of the town shall be the collectors of taxes. It was provided by the colonial statutes1 that taxes should be collected by the constable of the town in which they were assessed and the same provision was made in the earlier statutes of the provincial period; but before many years the election of a collector distinct from the constable was authorized and the constable continued to collect taxes only when no collector was chosen. In 1745 it was provided that if no constable or collector was elected by a town the sheriff of the county might collect the taxes. These provisions have remained substantially 3 4 G. L. c. § 38 infra page 158. 5 Murphy v. Clinton, 182 Mass. 198 (1902). 1 Sherman v. Torrey, 99 Mass. 472 (1868). 2 G. L. c. 60 § 90, infra page 393. 3 Smith v. Keniston, 100 Mass. 172 (1868). 1 Anc. Chart. 69, 82. 2 St. 1692-3. c. 28. 3 St. 1699-1700, c. 26; St. 1710-11, c. 5; St. 1730, c. 1. + St. 1745-46, c. 19. G. L. c. 41 § 401 5 unchanged to the present time. In 1815 it was first enacted that a town might appoint its town treasurer collector of taxes." When no person is chosen collector and the town has not voted that the treasurer act as collector, or a person chosen as collector declines to serve, the constables of the town become collectors ex officio without further formality and without taking any additional oath,' even although the person chosen collector is not summoned in writing to accept the office and his refusal to accept does not appear of record.s Temporary Collector SECTION 40. If the office of treasurer or collector of taxes is vacant, or if the treasurer or collector is unable to perform his duties, the selectmen may in writing appoint a temporary treasurer or collector, who shall be sworn, give bond in like manner as the treasurer or collector chosen by the town, and hold such office until another is qualified or the disability is removed. If a treasurer or collector does not, within ten days after his election or appointment, give bond, the selectmen may declare the office vacant and appoint another. The appointment of a collector pro tempore must be made by at least a majority of the selectmen and if it is not so made a subsequent ratification by the whole board is ineffectual.1 When a collector has died and the selectmen appoint a successor without designating him as a collector pro tempore, the appointment is merely inoperative so far as it exceeds the selectmen's authority, but it is valid as a temporary appointment until another election is had by the town.2 CHAPTER 44 MUNICIPAL FINANCE Establishment of Tax Limit SECTION 29. The tax limit heretofore established by ordinance under section nineteen of chapter seven hundred and nineteen of the acts of nineteen hundred and thirteen, in cities other than Boston, 5 See G. L. c. 59 § 53, infra page 280. St. 1815, c. 130, § 1. 7 Colman v. (1856). Anderson, 10 Mass. 105 (1813); Hays v. Drake, 6 Gray 387 8 Hays v. Drake, 6 Gray 387 (1856). 1 Phelon v. Granville, 140 Mass. 386 (1886). 2 Blackstone v. Taft, 4 Gray 250 (1855). |