Inhabitants of Orneville v. Pearson , 61 Me. 552 ( 1873 )

Peteiis, J.

It was provided by R. S. of 1857, c. 6, § 84 which is applicable to this case, that a warrant of a certain description should be committed to the collector and that he “ shall faithfully obey its directions.” Such warrant, in all material respects, should be a regular and legal one. Whether the general statutory formula of a warrant would be sufficient, when (as, it is argued, it sometimes has been) at variance with other positive and particular provisions of the statute, it is not now necessary to consider, for it is clear that the warrant in question is repugnant to the prescribed form and also not in accordance with particular provisions. This warrant directed an exemption from distress of “ those animals, implements, tools, articles of furniture, and other goods and chattels exempted from attachment for debt,” while the form of warrant provided by statute exempted only “ those implements, tools, and articles of furniture exempted from attachment for debt.” The collector was, therefore, circumscribed within less than the statutory limit of the articles to be distrained in case of the non-payment of taxes.

It is not an answer to this objection that the collector could discharge his duties fully by making arrests where he did not make collection, for such a proceeding might be both illegal and unprofitable. By R. S. of 1857, c. 6, § 90, an arrest would be unwarranted if the debtor should show sufficient goods and chattels to the collector to pay his tax; so that, if the debtor should show certain property exempted by the warrant and not exempted by law, the collector might be in a dilemma of obeying the warrant and disobeying the law, and by a scrupulous compliance with the very terms of his warrant, in making an illegal arrest, expose himself to penalties for his official exactness. Lothrop v. Ide, 13 Gray, 96.

The strongest case cited by the plaintiffs to sustain the validity of the warrant is Barnard v. Graves, 13 Met. 185, where a question arose between the debtor and the collector whether a distress, made by virtue of a warrant erroneous in some respect, was illegal on that account, when, notwithstanding the defects in the warrant, all the proceedings under it were executed in conformity to law. The question here is between the collector and the town, whether an officer shall be compelled to act under an instrument not authorized by law. We are of the opinion that the collector is excused from any further service under it, and that' he and his sureties are discharged from liability as far as the uncollected assessments are concerned. An amended and unobjectionable warrant can easily be committed to the same or some other collector. Orono v. Wedgwood, 44 Maine, 49; Cheshire v. Howland, 18 Gray, 321.

The item of ten dollars for committing a debtor cannot be allowed tlie collector. The year within which it should have been made having expired an arrest made afterwards would be rather for the benefit of the collector than the town. See R. S. of 1857, c. 6, § 128.

Nor can the defendants be allowed the item of $144.11. The overseers authorized the collector to pay that sum of money for the support of the poor. He paid it out of money collected from the taxes assessed in 1869; but he was not directed or authorized to pay the bills out of any town funds, and it does not appear that the town officers knew that the town funds were so used. Having contracted that amount of indebtedness with the collector the town afterwards paid the same. Money has no ear-marks as other property may have by which its ownership can be followed, and, as this court say in Dwinel v. Sawyer, 58 Maine, 27, “ It would be an insupportable burden upon the business community if they were obliged at their own peril to ascertain that every dollar they receive in the ordinary course of business is lawfully in the hands of him from whom they received it, with power to dispose of it as he undertakes to do.”

The above remarks are as significant upon the next point submitted. The collector paid to the treasurer certain money, collected mostly from assessments of 1869, and the treasurer credited it upon the collector’s liability for taxes collected upon the assessments of 1868. The collector, although he intended to have it applied upon the collections of 1869, expressed no intention about it, and made no appropriation whatever, nor undertook to make any. The treasurer did make an appropriation and, under tlie circumstances, very properly upon the liability of the longest standing. It does not appear that the treasurer knew where the money came from, or that he was aware that the collector desired to make any particular appropriation of it. It was paid in to him as money merely, and not as money collected upon the tax lists of 1869. There would be no end to error and confusion in town transactions if such appropriations and settlements can be afterwards repudiated or overhauled when obtained without unfairness or fraud. According to the authorities the appropriation as made must stand. Coleraine v. Bell, 9 Met. 499; Sandwich v. Fish, 2 Gray, 298; Readfield v. Shaver, 50 Maine, 36.

The counsel for the defendants relies much upon the case of Porter v. Stanley, 47 Maine, 515, as opposed to this conclusion and as conflicting to some extent with the case of Readfield v. Shaver, before cited. The cases are not alike. In Porter v. Stanley there was a special fund consisting of town orders taken by a collector, who was also treasurer, for the taxes assessed in certain years, and in his settlement with the town officers applied upon his liabilities as collector for another year. It was not consented to by the collector, “ unless it was right,” which it was not, and was a clear case of an intentional misappropriation, into which the collector was induced by the town officers. It would have been another thing if, as here, the orders or money had been paid over as money merely and not as any particular fund.

The result must be that the defendants are to be defaulted for 1304.03 with interest from date of writ.

Defendants defaulted.

Appleton, C. J.; Cutting, Walton, DiceehsoN, and Bah- . nows, JJ., concurred.