Whiting v. City of Ellsworth , 85 Me. 301 ( 1893 )

Libbey, J.

This is assumpsit by the plaintiff to recover of the defendant city, theamountpaid by him to James A. McGown, acting collector, as his taxes on personal property in said city for 1890. The plaintiff claimed that he was not an inhabitant of Ells-worth on the first day of April of that year. He was arrested by said McGown for non-payment of his tax, on the 30th day of September, 1890, and thereupon paid his tax under protest, and in this action seeks to recover it back.

It is admitted that said McGown, as collector, paid the tax to the city treasurer on the same day.

The jury found against the plaintiff on the question of his liability to taxation as an inhabitant of said city and that fact is no longer in contention.

The plaintiff claims to recover on two grounds :

1. That the assessors for 1890 were not qualified by taking the oath required by the statute before the performance of their duties. The record o( their election and qualification was put in evidence by the plaintiff, and he claimed it was not sufficient to prove that the oath was duly administered to them. The city clerk was then called by the plaintiff as a witness, and on cross-examination testified that all the assessors were duly sworn in his presence. The defendant then asked leave for-the clerk to amend his record of the administration of the oath according to the fact, which was granted by the court,.and the amendment was made. It is claimed that this was error. There can be no doubt about the the power of the court to permit suck amendment. E. S., c. 3, § 10.

But if there was no sufficient record of the oath, the fact that the assessors were duly sworn may be proved by parol, and it was proved by the city clerk.

2. It is claimed that McGrown, acting as collector, was not sworn as required by the statute, and had no legal authority to act as such when he arrested the plaintiff and received from him his tax.

The tax was legally assessed upon the plaintiff. It was due to the city; McGrown was duly chosen collector; gave the requisite bond as such, and the taxes were duly committed to him by the assessors. He was acting as collector under color of his election, and was collector defacto. As between the city and tax payer he had .the right to receive and receipt for the taxes committed to him. Belfast v. Morrill, 65 Maine, 580 ; State v. Goss, 69 Maine, 22; Woodside v. Wagg, 71 Maine, 207. The defendant has no money which in good conscience belongs to the plaintiff. Exceptions overruled.

Peters, C. J., Walton, Yirgin, Foster and Haskell, JJ., concurred.