But the difficulty increases when it is not the obedience of the township, but that of the town-officers which is to be enforced. All the reprehensible actions of which a public functionary may be guilty are reducible to the following heads:
He may execute the law without energy or zeal;
He may neglect to execute the law;
He may do what the law enjoins him not to do.
The last two violations of duty can alone come
under the cognizance of a tribunal; a positive and
appreciable fact is the indispensable foundation of
an action at law. Thus, if the selectmen omit to
fulfil the legal formalities usual at town-elections,
they may be condemned to pay a fine; but when
the public officer performs his duty without ability,
and when he obeys the letter of the law without
zeal or energy, he is at least beyond the reach of
judicial interference. The Court of Sessions, even
when it is invested with its official powers, is in
this case unable to compel him to a more satisfac
obedience. The fear of removal is the only
check to these quasi-offences; and as the Court of
- Laws of Massachusetts, vol. ii. p. 45.
township. Suppose that the funds which the law demands for the maintenance of the roads have not been voted; the town-surveyor is then authorized, ex officio, to levy the supplies. As he is personally responsible to private individuals for the state of the roads, and indictable before the Court of Sessions, he is sure to employ the extraordinary right which the law gives him against the township. Thus by threatening the officer, the Court of Sessions exacts compliance from the town. See Act of 5th March 1787, Id. vol. i. p. 305.