73 Me. 177 | Me. | 1882
This is an action upon a bond given to secure the fidelity of the principal as collector of taxes for the town of Brunswick. It is admitted in the bond that he was duly appointed as such. The principal makes no defence. The sureties defend on the ground that the warrant under which the taxes were committed was defective, and therefore illegal; that this was the fault of the town, and that "the town ought not to - derive a benefit against an innocent pary, when itself guilty of neglect and illegal proceeding in the matter which is the foundation of the claim.” The defect in the warrant is admitted; but that defect is not the foundation of the claim made here. The taxes not collected, are not claimed,.but those which have been. The defect excuses the collector from collecting, but does not excuse him from paying over what is paid to him. This still remains a duty devolved upon him by virtue of his office. It was optional for him to proceed in the collection of the taxes, and exhaust what authority was given him for that purpose, or declinó to do so. But electing to proceed as he did in this case, he must proceed as collector, and can do so in no other capacity. Whatever money he receives upon the taxes, he receives as collector. The condition of the bond is "that if the principal shall well and faithfully perform
The defendants are to be charged for all moneys received upon the taxes, including the school district tax, committed to the collector for the year 1875. • This will include the interest received upon taxes tardily paid, as well as interest chargeable to the collector for non payment of money received after it became pay-able by reason of a demand, or from the date of the writ.
They are to have credit for all payments made by the collector ■ to the treasurer. This does not include orders or receipts given Tor discounts made by vote of the town, or for abatements.
The amount collected on the warrant of distress, and credited •on the school district tax, must also be allowed. Whether the treasurer was guilty of trespass in issuing such warrant, is a matter not to be decided in this action. That issue is pending between other parties. If the treasurer committed a wrong, he alone must bear the consequences whatever they may be. But .at present we see no occasion for supposing a double payment of the damages to be one of the consequences. If the amount so paid should prove to be a greater amount than was due from the collector upon that assessment, there would seem to be no good reason why the excess should not be refunded. So far as it is a
The compensation for collecting in the first instance, was fixed by express contract. That contract has been fulfilled by neither party. It was a necessary part of it that the collector should have the legal warrant, as well as a valid assessment. The warrant was defective, and for this reason ■ the assessors failed on their part. Whether this resulted in injury to the collector, does not appear, for there is no evidence to show whether the failure to collect, so far as there was a failure, resulted from his own neglect, or from his inability to collect, on account of the defect. On the other hand there was not only the failure of the collector to collect all the tax, or exhaust all the authority he did have for that purpose, but especially in not paying over the money he did collect as it was his duty to do. Whatever then he is entitled to receive, if anything, is the actual value of his services to the town, by virtue of an implied contract. He should not suffer on account of the delinquency of the assessors, but must bear the responsibility of his own. But whether this compensation whatever it may be, if anything, can be deducted from the liability of the collector in a case like this, is a more serious question. It is evident that it is a distinct demand against the town. His pay is to come from the town, and through the municipal officers.' The treasurer has nothing to do with fixing the amount or paying it, except as he does so upon the orders of the proper officers. The collector has no right to retain it. By his warrant as well as by the provisions of the statute, he is required to pay over to the treasurer all the money he collects. K. S., c. 6, § § 94, 95, 99, 130 ; laws of 1874, c. 162, § 2. It has not been filed in set-off in this case, nor could it have been, for, if for no other reason, it is not a demand due from the plaintiffs to all of the defendants. But this action is for damages for a breach of the bond. These services grew out of, are connected with, and incident to this' claim. The damages to the town are lessened just so much as. the services, under all the circumstances, were worth to the town..
Action to stand for assessment of damages.