Inhabitants of Topsham v. Blondell

• Decision Date: 19 November 1889
• Citation: 82 Me. 152,19 A. 93
• Parties: INHABITANTS OF TOPSHAM v. BLONDELL
• Court: Maine Supreme Court

19 A. 93

82 Me. 152

INHABITANTS OF TOPSHAM

v. BLONDELL

Supreme Judicial Court of Maine.

Nov. 19, 1889.

(Official.)

Report from supreme judicial court, Sagadahoc county.

Barrett Potter, for plaintiff. G. D. Parks, for defendant.

VIRGIN, J Debt brought in the name of the inhabitants of the town, under the requisite written direction, to recover certain taxes alleged to have been legally assessed on the poll and personal property of the defendant for the respective municipal years of 1877 to 1883, both inclusive, during all which time he was a resident in the town.

In addition to the genaral issue, the defendant interposed the general statute of limitations.

Nullum tempus occurrit regi declared the common law of England, and this exception of the sovereign from the statute of limitations has been adopted in this country as applicable to the state, and very generally defended upon grounds equally forcible here as in England,—that public remedies, in preserving the public rights, revenues, and property, ought not to be lost by the laches of public officers. TJ. S. v. Hoar, 2 Mason, 312.

While there may not be any limitation bar to the collection of a tax in the old mode, we think that when the legislature, in 1874, created the additional remedy of an action of debt therefor, it thereby gave the town its choice of remedies; and, if the new remedy is elected, it is accepted with all of the general rules of pleading, practice, and limitations which pertain to the action of debt. On recurring to the statute bar governing actions of debt, we find it expressly includes such as are "founded on a liability not under seal." Rev. St. c. 81, § 82, cl. 1. That this action is within the letter of the statute cannot be questioned.

Moreover, towns in this state are generally small in territory, and the inhabitants comparatively few in numbers. Their municipal officers, including collectors, are elected annually. Every resident's tax is spread upon the collector's lists, prepared by the assessors, which lists he is bound to exhibit once in two months. He is chargeable with the whole amount of the tax committed to him, (Thorndike v. Camden, 82 Me. 39, 45, post, 95;) and he gives a bond with such sureties, and in such sum, as the municipal officers approve for the faithful discharge of his duties. Moreover, the annual detailed reports of the financial agents of the towns make known their indebtedness and resources. Laws 1885, c. 359, § 1. We perceive, therefore, no reason why towns should not be held to the same degree of diligence in collecting their taxes as debts as they are in collecting other statute liabilities owing to them. Kennebunkport v. Smith, 22 Me. 445.

While, in regard to contracts or mere private rights, towns, like private citizens, may plead and have pleaded against them the statute of limitations, still, as it respects all public rights, or property held for public use upon trusts, there is some conflict of authority, though we know of no case relating to taxes. But the overwhelming weight of authority holds that municipal corporations, even in their public character, are not so vested with the rights and privileges of sovereignty as to be within the protection of the maxim nullum tempus, etc. Wood, Lim. § 53; Dill. Mun. Corp. § 529, and cases in notes, which includes Pella v. Scholte, 24 Iowa, 283, the opinion in which was drawn by DILLON, C. J. In his work on Municipal Corporations, this opinion of the distinguished author seems to have become somewhat modified. Section 533. A very exhaustive and critical review of the cases was made by the court in Wheeling v. Campbell, 12 W. Va. 36.

As the writ is dated March 20, 1888, the statute bars the collection in this mode of all taxes...