Sterling v. McMaster

82 Md. 164 | Md. | 1895

Bryan, J.,

delivered the opinion of the Court.

Sterling, the sheriff of Somerset County, filed a petition for a mandamus against McMaster, treasurer and collector of the same county. It was alleged that McMaster, in violation of his duty, refused to place in the hands of the sheriff certain bills for the collection of unpaid taxes, and the petition prayed that he might be compelled by mandamus to perform the alleged duty. A demurrer having been entered by consent, the Court dismissed the petition.

The duties of the treasurer and collector were imposed by the Act of 1894, chapter 578. By the two hundred and fifteenth section of the Act he is required each year, as soon as the annual levy is made, to give public notice thereof by advertisement in at least two newspapers published in Somerset County, .and the taxes are declared to be due and payable on the first day of October of the year in which they are levied. By the same section it is made the duty of the treasurer and collector to sit for two days for the purpose of receiving taxes at the principal town in each election district in the county, and if there be no town, then at the principal or some convenient place of resort therein; and he is. required to give due notice of each of said sittings by advertisement in two newspapers published in the county. By the two hundred and sixteenth section it is declared that on the first day of January in each year, taxes shall be deemed to be in arrears, and interest shall be collected on them from the first day' of October. The treasurer is required as soon as practicable after the first day of January to deliver to each delinquent who has not previously received such notice, an account of the assessment and the taxes and interest due thereon, with a notice and warning thereto attached, that unless payment in full be made within sixty days from the delivery of such notice, the same shall be collected by process of law. It is also required by the same section that all tax bills unpaid on the first day of April, after the service of such notice shall be placed by the treasurer in the hands of the sheriff, who is required forthwith to proceed to collect them according to the provisions of the Public General Laws.

The petition alleges that on the ist day-of April, 1895, a large proportion of the bills of State and county taxes being unpaid, he demanded of William S. McMaster, the treasurer and collector as aforesaid, that the taxes remaining unpaid on that date be handed over to him, your petitioner, under the provisions of the said Act, and placed in his hands for collection; but the said William S. McMaster, contrary to his duty, neglected and refused, and still neglects and refuses to place the said bills for taxes remaining unpaid in the hands of the petitioner for collection.

The quotations from the statute which we have made, show that as soon as practicable after the first day of January, the treasurer shall deliver to each delinquent (who has not previously received notice) an account of his assessment, accompanied with the notice and warning that the tax will be collected by process of law, if not paid within sixty days. He is of course entitled to a reasonable time to deliver these notices and warnings. ' The terms of the Act imply a personal delivery to each delinquent. Although it is impossible to determine in advance what length of time might be required to make these deliveries, yet it is very certain that the treasurer ought to act promptly and diligently, as becomes a public officer impressed with the necessity of making a speedy collection of taxes. If the delinquent should fail to make payment within sixty days after the delivery of the notice and warning, he is liable to legal process ; and if this time has expired the bills must be placed in the hands of the sheriff for collection on the first day of April. In passing, we would say that we would not intimate that the bills were to be withheld from the sheriff in case the sixty days did not expire until after the first of April. The law manifestly contemplated that the warnings would be given more than sixty days before the first day of April. But if for any reason there should be a delay in giving them, so that this term of notice would not expire before the first day of April, the law is not on that account to be defeated. Its grand leading object is to compel the speedy collection of taxes; and that object must be attained, notwithstanding the proceedings for this purpose should not be carried out at the times designated. The time appointed for placing the tax bills in the hands of the sheriff is not an essential part of the statute, but the speedy collection of taxes is the predominant purpose for which it was enacted. It would be most unwise to sacrifice this end to the matters of administration which were intended to accomplish it. In State ex rel. Webster v. County Commissioners, 29 Md. 516, this Court considered a statute which provided that the County Commissioners of Baltimore County should, within twenty days after its passage, order an election for supervisors of roads and bridges. It was held that the election might be ordered after the expiration of the twenty days, and that the County Commissioners might be compelled by mandamus to order it. The Court quoted a decision of Lord Ellen borough on an Act of Parliament, which required the Justices of the Quarter Sessions to appoint a surveyor of highways at their first special session after Michaelmas. The appointment was not made at the first session, and the Justices declined to make it at the subsequent sessions. His Lordship said: “ This part of the Act is only directory to the magistrates to make the appointment at the time mentioned. * * * And common sense requires that if the appointment be not made at the first special sessions, it should be made afterwards.” He therefore compelled the appointment by mandamus.

The petitioner does not allege that the ’ treasurer has unreasonably delayed in delivering the warnings, or that the sixty days after their delivery had expired when this proceeding was instituted. If these facts existed they would show a breach of public duty on the part of the treasurer; but the allegation in the petition which we have quoted is far short of this charge. In Pumphrey v. Mayor and City Council of Baltimore, 47 Md. 145, it was held that any private citizen was entitled to the writ of mandamus to enforce the performance of a public duty which was not due to the government' as such. In this case the writ was issued at the suit of Pumphrey to compel the Mayor and City Council of Baltimore to take charge and possession of the bridge over Gwynn’s Falls, as required by the Act of 1876, chapter 220. In a proper case, therefore, the petitioner, like any other citizen, would be entitled to a mandamus.

(Decided December 11th, 1895.)

We must affirm the judgment in this case. But the appellant is at liberty to file another petition if he sees fit to do so.

Jtidgment affirmed without prejudice.