Atwater v. O'Reilly

• Decision Date: 18 December 1908
• Citation: 81 Conn. 367,71 A. 505
• Parties: ATWATER, Tax Collector v. O'REILLY.
• Court: Connecticut Supreme Court

71 A. 505

81 Conn. 367

ATWATER, Tax Collector

v. O'REILLY.

Supreme Court of Errors of Connecticut.

Dec. 18, 1908.

Appeal from City Court of Meriden; Frank S. Fay, Judge.

Complaint by Francis Atwater, tax collector, against Fred O'Reilly, for an order of commitment of defendant for nonpayment of a military commutation tax. From an order of commitment entered after a hearing after overruling a demurrer to the complaint, defendant appeals. Affirmed.

Oswin H. D. Fowler, for appellant.

George A. Clark and Patrick T. O'Brien, for appellee.

HALL, J. Section 2395 of the General Statutes of 1902, as amended by chapter 50, p. 619, Pub. Acts 1907, provides that "when any person shall neglect or refuse to pay any poll or military tax assessed against him, after payment of the same has been legally demanded, the collector of the town to which said tax is due, and who is authorized to collect said tax, may at any time within three years after said tax shall become due, prefer his complaint to any justice of the peace residing in said town, or to any city, town or borough court established within said town, alleging the nonpayment of said tax, and such justice of the peace or court shall thereupon cause said delinquent taxpayer to be arrested and brought before such justice or court. Such justice or court shall thereupon hear and determine such case, and if no proper or sufficient reason is shown by said delinquent taxpayer, why said tax has not been paid shall order the accused to stand committed to the jail or workhouse, in the county, until such tax with the interest thereon and all costs of the proceedings shall be paid. Any person committed to jail under the provisions of this section shall be required to do such work as his physical condition may allow, and shall be discharged when his labor at the rate of one dollar a day shall amount to said tax and costs, and thereupon the county commissioners shall pay to the tax collector of the municipality from which the delinquent was committed the amount of said tax. * * *" In the proceeding before us, the complainant is described as the tax collector of the town of Meriden, duly appointed and qualified. One paragraph of the complaint alleges that Fred O'Reilly has failed to pay the military commutation tax of $2, assessed against him upon the rate bill, for the annual town tax of said town on the list of 1904, and which became due on the 21st of April 1905, and payment of which was legally demanded, and another paragraph contains similar allegations of the failure of said O'Reilly to pay his military commutation tax due on the 21st of April, 1907. The delinquent taxpayer demurred to the complaint upon the grounds, in substance, that it did not appear that said taxes were properly or lawfully assessed against the defendant or included in said rate bills; or that payment of the same had been legally demanded; or that the plaintiff was authorized to collect them. The overruling of this demurrer is one of the reasons of appeal.

This is not an action to which the ordinary rules of pleading in either civil or criminal cases must be applied. It is a special statutory proceeding. The purpose of it is not to enable the tax collector to obtain a judgment for the amount of the taxes, nor to require him to establish before a court the validity of the tax, his authority to collect it, and that it has been legally demanded before he can procure a delinquent taxpayer to be committed to jail. The court or justice to which such a complaint as this is preferred renders no judgment of indebtedness. Section 2395, enacted in 1901 and amended in 1905, and again in 1907, does not either expressly or by implication repeal the general provisions regarding the collection of military commutation taxes contained in sections 2381, 2394, 2412, and 2998. The collector Atwater could therefore, if he had seen fit, have proceeded under the warrant issued to him in March, 1908, under sections 2381 and 2...