Carter v. Allen , 59 Me. 296 ( 1871 )

Walton, J.

It was held in the celebrated case of The Six Carpenters, 8 Coke, 146, and in a large number of cases since, that if a man abuses an authority given him by the law, he becomes a trespasser ab initio.

The rule is founded in public policy. It was observed that persons clothed with official power were exceedingly apt to become careless and oppressive in the use of it. To counteract this tendency they are required to act at their peril. If they do not exceed their authority, nor in any way abuse it, the law protects them j if they do, then their protection is gone. Security against official carelessness and oppression is the reason of the rule; and this protection being as necessary now as at any former time, there ought to be no relaxation of the rule.

Assuming that in this case the defendant, as collector of taxes, had a right to seize and sell the plaintiff’s property to pay the taxes that were then due and unpaid; it was clearly his duty, after deducting the tax and expense of sale, to restore the balance to the plaintiff. R. S. c. 6, § 105. This he did not do. On the contrary, he applied a portion of the money to pay a tax that had already been paid; and another portion of it to pay charges which he had no right to make. This is admitted. We cannot doubt that sucb a misappropriation of tbe proceeds of tbe sale was, in contemplation of law, sucb an abuse of bis authority as made him a trespasser ab initio.

The statute, above cited, provides that the 'officer, after deducting the tax and expense of sale, shall restore the balance to the former owner, with a written account of the sale and charges. It was held in Blanchard v. Bow, 32 Maine, 557, that a failure to deliver 'the written account made the collector a trespasser ab initio. Can a failure to deliver the balance of the money actually due have a less effect? The statute, in the same sentence, requires both the money and the account to be delivered. If a failure to deliver the one makes the officer a trespasser ab initio, bow can a failure to deliver the other havé a less effect ? Is not the money quite as important to the former owner as the written account; and if a failure to deliver the latter makes the officer a trespasser ab initio, a fortiori, will not a neglect to deliver the former have the same effect ? We cannot doubt that it will.

Befendant to be defaulted.

Bamayes to be assessed by the court at nisi prius.

Appleton, C. J.; Cutting, Kent, Dickerson, and DaNboeth, JJ., concurred.