¶1The opinion of the court was delivered by
¶21. The first question in this case is, whether the refusal of a highway surveyor to execute a receipt for a tax bill, offered to him for collection, by the selectmen, is, ipso facto, a vacating of the office. We think it is not. Such refusal is, at most, the omission by such officer of a prescribed duty. The statute does not, in terms, visit any such consequence, as that contended for, upon the act complained of. To give it that effect, by construction, would be to adopt a principle, which, in practice, would render it necessary to fill most offices many times over, before the legal time appointed for a new election by the people.
¶32. Had the selectmen a judicial discretion in determining when they might make a new appointment ? They doubtless, to some extent, had a discretion in the matter; for instance, in selecting a suitable person to fill any vacancy, which might occur. But w’e think a vacancy must have occurred in order to give them any jurisdiction of the matter. This vacancy must have occurred in one of the modes pointed out in the 20th section; “ from non-acceptance, death, removal, insanity, or other disability.” Now it cannot be contended that the present case comes under any of the terms used, unless it be the last, and it would not seem to require argument to show that the omission complained of, in this case, constitutes no disability to perform the functions of the office, in any such sense as that term is used in the statute. “ Other disability ” must import such like disability as had been before enumerated —- that is, such as wholly vacated the office and left it the same as if there had been no appointment. In the present case no such vacancy had occurred ; and, by consequence, the selectmen had no power to make an appointment, and their proceedings are irregular and void.
¶43'. It is said the collector, or surveyor, was an officer de facto, and, therefore, his acts are valid. This may be true, so far as third persons are concerned, but not when the offi*658cer himself, or those under whose authority he was appoint ed nnd put in motion, are called to justify his proceedings. They must show his right to exercise the functions of the office.
¶5Judgment affirmed.