Gould v. Monroe , 61 Me. 544 ( 1869 )

AppletoN, C. J.

This is an action of debt brought by the plaintiff, as collector of taxes of the town of Milo, for the year 1866, to recover the amount of the supplemental tax assessed upon the poll and personal estate of the defendant under the provisions of R. S. of 1857, c. 6, § 97.

The jury found by their verdict that the defendant was an inhabitant of Milo and liable to be assessed in that town.

Numerous objections were raised to the regularity of the appointment as well as to the proceedings of the officers of the town of Milo, which will be considered in their order.

1. At a legal town meeting the inhabitants duly chose certain individuals as selectmen. They then voted to pass the articles for the choice of assessors and that “ the selectmen be assessors.” By c. 6, § 61, “ If the town does not chose assessors . . . the selectmen shall be the assessors, and each of them shall be sworn as an assessor.” The law is fully complied with whether-we regard the assessors as duly chosen, or acting as such by virtue of § 61. Massey v. White, 3 Greenl. 290.

2. The persons chosen as selectmen made oath that “ they would faithfully and impartially discharge the duties of selectmen and assessors ... to the best of their abilities and according to law.” This is obviously a full and complete compliance with the statute. Mussey v. White, 3 Greenl. 290; Patterson v. Creighton, 42 Maine, 376.

3. The assessment was signed by them as assessors. It is immaterial whether they became assessors by a legal choice of the inhabitants, or by the operation of the statute and as a consequence of their having been previously duly chosen as selectmen. In either event they were assessors, and there can be no objection to their signing their assessments as such.

4. The power to make supplemental assessments is given by II. S., c. 6, § 25, and the assessors appear to have carefully conformed to the provisions of the law in that respect.

5. The collector of taxes must take the oath of office before he can properly act as such. Payson v. Hall, 30 Maine, 319. The refusal on his part to give the bond required by the statute is to be regarded as a non-acceptance of the office to which he was chosen. Morrill v. Sylvester, 1 Greenl. 249. It does not appear by the records of Milo that J. H. Ramsell ever took the oath of office or gave the bonds required by law. It further appears by other evidence that Ramsell never took the oath nor gave the bonds required by law and that he refused to accept the office. A vacancy in the office of collector was fully established.

6. By the act approved Feb. 24, 1865, c. 318, provision is made for the choice of collectors, and “ if none are chosen, or if those chosen refuse to serve or give the requisite bonds, the assessors may appoint a suitable person to act as constable and collector for the collection of taxes.” The evidence is satisfactory to show that a state of facts'existed requiring the action of the assessors in that behalf. It seems that it is not necessary that the refusal of the person chosen as collector to accept that office, or his omission to qualify himself for the discharge of its duties, by taking the oath and giving the requisite bonds, should appear on record in the books of the town. Hays v. Drake, 6 Gray, 387. “ That the appointment should, in some way, appear of record,” remarks Parker, J., in Souhegan Factory v. McConihe, 7 N. H. 320, “ is true. But there is no particular form of a record in such case, and the warrant granted to him, which is his commission for collecting the taxes, and which of course must have been recorded in the town records, being under the hands and seals of the selectmen, is a sufficient evidence of an appointment by them, the town having neglected to elect. 2 N. H. 205.”

Exceptions overruled.

' Cutting, KeNT, Walton, Dickerson, and Tapley, JJ., concurred. 1