Page:Democracy in America (Reeve, v. 1).djvu/147

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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[1]; 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 satisfacftory obedience. The fear of removal is the only check to these quasi-offences; and as the Court of

    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.

  1. Laws of Massachusetts, vol. ii. p. 45.

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