Smith v. Randlette , 98 Me. 86 ( 1903 )

Powers, J.

Bill in equity under R. S., c. 4, § 53, as amended by ch. 260, of the laws of 1893.

At the annual town meeting in Richmond for 1903, it was voted that the tax collector pay in to the town treasurer, on or before February 1, 1904, the full amount of the commitment. Bids were then received from various parties, and read in town meeting, and among others, the following signed by the plaintiff.

“ To the inhabitants of Richmond: I will collect the taxes for the year 1903, and settle with the town on or before February 1, 1904, at the rate of one and seventy-two and a half hundredths per cent.”

Thereupon the plaintiff was duly elected and sworn as tax collector. On May 26, he tendered to the assessors a bond with sureties, conditioned that he would well and faithfully perform all the duties of his said office. The penal sum and sureties in said bond were satisfactory to the municipal officers, but they declined to approve it unless it contained the further condition, “and setttle in full for said taxes on or before February 1, 1904.” The plaintiff declined to give a bond containing this clause, and thereupon the assessors, claiming that the plaintiff had refused to give the requisite bond, appointed the defendant to act as constable and collector for the collection of taxes for 1903, and he is now holding and exercising the duties of said office.

The statute provides that the assessors “shall require the constable or collector to give bond, for the faithful discharge of his duty, to the inhabitants of the town, with such sum and with such sureties as the municipal officers approve,” R. S., c. 6, § 128, and that when the collector chosen refuses to give the requisite bond, the assessors may appoint a suitable person to act as constable and collector for the collection of taxes. R. S., c. 6, § 125.

Was the bond which the plaintiff tendered the requisite bond within the meaning of the statute? It is claimed in behalf of the defendant, that, inasmuch as section 128 provides that the assessors shall require the collector to give bond, the requisite bond contemplated by the statute is such a bond as the assessors shall require. We do not think such is the proper construction of the language used. The statute states that the bond required of the collector shall be for the faithful discharge of his duty. Section 128. The word “requisite” used in section 125, lias reference to such a bond as is required by section 128, and such only as the assessors have a right to require. The form of the bond is fixed by the statute and not by the widely varying ideas of each board of assessors as to what may be required in the premises. The bond tendered by plaintiff contained the condition that he would well and faithfully perform all the duties of his said office, and was a bond “for the faithful discharge of his duty,” within the meaning of these' words as used in the statute under consideration.

The defendant further contends that by virtue of plaintiffs contract with the town, it became his duty to make full settlement by February 1, 1904, and that therefore the assessors had a right to require a bond, which” in terms called for the performance of this duty. If it be admitted that to make such a settlement was the “duty” of the plaintiff within the meaning of that word as used in section 128, then the bond which he tendered for the faithful performance of all the duties of the said office, covered that duty. All the duties must include every duty. If to make a settlement at that date was not such a duty, then the statute did not require a bond for its performance; neither did the contract into which the plaintiff entered call for any. He agreed to make full settlement by a certain date, — he did not agree to give bond that he would do so. A party who enters into a contract cannot be required to give bond for its performance, unless the giving of such bond is a part of the contract.

It follows that the plaintiff, never having refused to give the requisite bond, is the lawful collector of taxes of the town of Bichmond, that it was the duty of the municipal officers to approve the bond tendered, and that the defendant is unlawfully claiming and holding the office.

Bill sustained. Decree accordingly.