Millet v. Inhabitants of Stoneham , 26 Me. 78 ( 1846 )

The opinion of the Court was prepared by

Tenney J.

— The plaintiff was employed by the collectors of the town of Stoneham, for the years 1640 & 1841, respectively, to advertise in a newspaper, published by him, sales of land for unpaid taxes assessed thereon. The defendants are attempted to be charged in this action for those services, on the ground that they were the contracting party, the collectors acting merely as their agents. The proposition, that the town is liable, cannot be maintained. By chap. 116, sect. 23, of the •statutes of 1821, towns could choose a collector of taxes, and agree upon what sum should be allowed and paid to such collector for his services; he was to have a warrant from the selectmen or assessors, empowering him to collect such taxes as should be committed to him ; he was required to pay in the same, according to the direction of his warrant; he was to be under bond, conditioned for the faithful discharge of his duty as collector. By the 25th section of the same chapter, it was necessary for his qualification, that he should be under oath to make collections of the taxes committed to him, for which he should have sufficient warrant, according to law, rendering an account thereof, and paying the same, according to his warrant.

The modes in which collections could be enforced, were various, according as resort was to be had to distress, the body of the delinquent, or the lands, upon which the assessment was made. In each of these modes, it might be necessary that expense should be incurred in addition to the personal services of the collector; but for this he was entitled to reimbursement from the person arrested, or from the avails of the distress, or lands sold. Chap. 116, sect. 26, 30 and 31.

When the assessments and a sufficient warrant are put into the hands of the collector, he is responsible for the amount; he has certain specific duties to perform and is entrusted with no discretionary power in their exercise ; he is bound, by virtue of his office, his warrant, his bond, his oath and the consideration to be paid, to collect the taxes committed to him, and when necessary to resort to the different modes, which the law prescribes, to compel payment. When he has performed his whole duty, if by the inability of'any one upon the assessment, or error, or accident, in matters over which he had no control, collections fail, he is entitled to allowance, which becomes to him, tantamount to a payment.

The collector holds a relation to the town very, different from that of selectmen, assessors, overseers of the poor, and others, whose duties are more of a fiduciary character, and who are clothed with a discretionary power to see that all the different obligations of towns are discharged, and their interests properly guarded and protected, so far as they fall within the respective spheres of such officers. If the town by a corporate vote, or the overseers of the poor for an agreed price, employ an individual to take charge of, and to support the paupers of the town for a given time, with food and clothing, during sickness and health, he becomes in one sense the agent of the town for that purpose, as much as the collector is the agent of the town for another purpose : the fact that the office of the latter is one established by the statute does not in this respect create a distinction. If a physician should be employed by the person, who had so contracted, to administer professionally to one of these paupers, would it be contended that the town would be liable to the physician for the services rendered ? The Legislature have been careful to require security for all moneys, which should legally come into the hands of officers of towns, belonging to the towns in their corporate capacity. The bonds which the statute requires have been broad enough to cover every thing to which the town had a claim, that the officer is entitled by virtue of his office to receive. Collectors are authorized to demand from the persons, who have been arrested on áccount of non-payment of taxes, the expenses incurred in the arrest as well as the taxes; when goods have been taken in distress, or lands advertised for the same purpose, and the taxes have been paid before a sale, he had the same claim for the moneys expended, and charges made against him for the necessary services rendered, that he had for the tax itself; and a sale would be for the failure in obtaining the like expenses as well as for the sum named in the assessments. Neither the collector’s warrant, oath, or bond required him to pay to the treasurer these expenses, which he was obliged to incur, and which he had received. If the town were bound, notwithstanding the receipt of the money by the collector, to pay the persons who may have been employed to do some service for the collector in the performance of his legitimate duties, it is deprived of the security, in this instance, which the statute has made ample for other official neglects of a similar character. It cannot be doubted, that the collector, being bound to collect the rates committed to him in consideration of the sum agreed upon for his services, has no power to contract in the name of the town, and at the expense of the same, for such services as those rendered by the plaintiff. It does not appear from the case, that it was the expectation, either of the plaintiff or the collectors, that the town was holden for the service performed by the plaintiff. The collectors employed him, and they were under an implied promise to pay him. It is a well established rule, that although an agent may be duly authorized, and although he might avoid personal liability by acting in the name and behalf of his principal, still, if by the terms of his contract, he binds himself personally, and engages expressly in his own name to pay, he is responsible, even though he describe himself as agent. Simonds v. Heard & al. 23 Pick. 120.

Judgment for the defendants for their costs.