Inhabitants of Cape Elizabeth v. Boyd

| Me. | Mar 26, 1894

Walton, J.

In addition to the other provisions for the collection of taxes legally assessed, the mayor and treasurer of any city, the selectmen of any town, and the assessors of any plantation, to which a tax is due, may in writing direct an action of debt to be commenced in the name of such city, or of the inhabitants of such town or plantation, against the party liable. E. S., c. 6, § 175.

The question is whether a general direction by the selectmen of a town to a tax-collector to commence actions against " any and all tax-payers” who "refuse or fail” to pay their taxes, is a compliance with this statute. We think not. The power conferred by this statute requires an exercise of judgment and discretion. A refusal to pay a tax is one thing. A failure to pay is another. The former may be the result of wilfulness or a denial of the legality of the tax. The latter may be the result of sickness and poverty and an utter inability to pay. In the former case, an action may be expedient. In the latter, inexpedient. It is plain, therefore, that judgment and discretion are to be exercised in determining whether or not an action shall be commenced. And it is a familiar and well settled rule of law that when judgment and discretion are to be exercised, they must be exercised by the persons on whom the law has placed the power and authority to act. Their exercise can not be transferred to another. Such powers are incapable of delegation. 1 Dill. Mun. Corp. § (50, and cases there cited.

The plain meaning of the statute is that no action shall be commenced to collect a tax, unless its commencement is directed by some one of the boards of officers named, in writing. An oral direction will not be sufficient. When, in any case, an authority is required to be conferred in writing, an oral authority wall not be sufficient. Such a requirement is calculated to avoid a dispute respecting the fact, and to protect towns against hasty and inconsiderate action by their selectmen. So held in Morrill v. Dixfeld, 30 Maine, 157.

And each suit should receive a separate consideration. A general direction pj the tax collector to commence actions against any and all tax-payers who refuse or fail to pay their taxes, is not sufficiént. It is not sufficiently specific. It practically transfers to the collector the power to determine whether or not any particular action shall be commenced; and this the law will not allow.

For these reasons, we hold the direction in this case insufficient, and the action improperly commenced.

Judgment for defendant.