Inhabitants of York v. Goodwin , 1877 Me. LEXIS 47 ( 1877 )

Appleton, C. J.

This is an action of debt brought to recover a tax of the defendant under and by virtue of the provisions of the act of 1874, c. 232.

The declaration contains the following averments, to wit: (1.) the defendant was an inhabitant of, and liable to taxation in the town of York; (2.) the due election and legal qualification of certain assessors; (3.) the legal assessment by them of the defendant’s due proportion of the entire tax for the then current year ; (4.) the listing and commitment of the list to a duly elected and qualified collector; (5.) payment of said tax duly demanded of said defendant by the said collector prior to the commencement of this suit; (6.) the non-payment by the defendant of the same.

The defendant demurred generally to the writ and in his argument relies upon the following grounds to sustain the demurrer.

(1.) It is objected that the tax was assessed before the statute became operative and therefore that it does not apply. But the act only gives an additional remedy for the collection of taxes. It interferes with no vested right. It only furnishes another mode of compelling the defendant to do what without compulsion it was his duty to do.

(2.) As it appears that a warrant was in the hands of the collector by whom the demand was made, it is urged that this suit cannot be maintained. The statute requires a demand to entitle the plaintiffs to recover their costs. But by whom is the demand to be made ? By one, who in case of compliance with the demand, is authorized to receive the tax and to discharge the same. The collector is the person upon whom the duty of making a demand devolves.

It is said that these processes are inconsistent, and that having once placed a warrant in the hands of the collector, the plaintiffs are thereby precluded from maintaining this action. By the terms of the act, this action is “in addition to the methods now provided by law for the collection of taxes legally assessed.” It is said that resort may be had to both processes at the same time. It does not appear that more has been done by the collector than to make the requisite demand. Had the demand been complied with, it would have discharged the tax as well as have been a bar to any suit for its recovery. Indeed, if a suit be brought it must be regarded as a waiver of procedure by arrest or distraint, for resort cannot be had to both processes at the same time. This is an additional not a concurrent remedy. The man who pays his taxes is in no peril. ' Exceptions overruled.

Declaration adjudged good.

Walton, Barrows, Yirgin, Peters and Libbey, JJ., concurred.