Gilman v. Inhabitants of Waterville , 59 Me. 491 ( 1871 )

Danforth, J.

Tliis is an action against tbe defendant town, for tlie purpose as alleged in the declaration, of recovering back money illegally assessed and collected.

From the testimony as reported, we learn that the illegality relied upon, arises from certain alleged errors in the warrants and commitments to the collector. Assuming the' existence of these errors, they affect the authority of the collector rather than the legality of th,e assessment. For such errors no action can be sustained against the town except as provided in R. S. c. 6, § 114. Under that provision, if the plaintiff has suffered damage by reason of the mistakes, errors, or omissions of the assessors, collector, or treasurer, the tax is not void, but he may recover such damages in an appropriate action against the town. Upon this ground as a basis for the plaintiff’s action, the only question which can arise is that of damages. It is not the tax or any portion of it as such, which he recovers, but only “ damages he has sustained by reason of the mistakes, errors, or omissions of such officers.” To the plaintiff’s success in this action, u.pon this branch of his case, there appears to be two insuperable objections,- — 1st, an action for money had and received is not an appropriate action in which to settle a question of unliquidated damages ; and 2d, we are unable from the testimony to ascertain that he has suffered any such, or any damages whatever. It appears that he has paid his tax. It does not appear that he has paid any more than his tax, or any more than he would have done, if such mistakes, errors, or omissions had not occurred, or that he has in his person or property suffered any injury on that account.

The plaintiff claims, also, to recover on the ground that certain sums, included in his tax, were raised for an illegal object. If this were so, under the statute before cited, he might, undoubtedly, recover in this form of action.. But this nowhere appears. The sums paid for extra interest, and to the prosecuting committee, were not voted by the town for that purpose. The town did, by vote, raise a sum for interest. But the sum was indefinite, and no mention is made of extra interest, nothing in the vote to indicate that it was to be appropriated for other than legal interest, and illegality of purpose is not to be presumed.

An illegal voting of money to be- assessed is one thing. An illegal payment of money after it is assessed is quite another thing.

For the former, if actually assessed and collected, an action will lie; for the latter, another and different remedy seems to have been provided.

The four thousand dollars.raised for the purpose of making Ti-conic bridge free, was authorized by special act of the legislature, approved March, 22, 1864, passed after the vote, but before the assessment. .The sum of two thousand dollars, voted for a soldiers’ monument, was raised in 1869, and authorized by an act of 1866, c. 19, incorporated into the R. S. c. 3, § 36. The plaintiff fails to sustain his action upon either ground, and in accordance with the provision in the report there must be

Judgment for the defendants.

Appleton, C. J.; Kent, Walton, Dicicerson, and BaRRows, JJ., concurred.