Clark v. Gray

• Decision Date: 19 July 1915
• Citation: 94 A. 881,113 Me. 443
• Parties: CLARK v. GRAY.
• Court: Maine Supreme Court

94 A. 881

113 Me. 443

CLARK

v. GRAY.

Supreme Judicial Court of Maine.

July 19, 1915.

Exceptions from Supreme Judicial Court, Piscataquis County, at Law.

Action by Amasa Clark against John E. Gray. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

C. W. Hayes, of Foxcroft, for plaintiff. Hudson & Hudson, of Guilford, for defendant.

CORNISH, J. This is an action of trespass against a tax collector for an alleged illegal arrest. The defendant sent to the plaintiff by mail, postage paid, a written notice, in the following form:

"Corinna, Maine, Oct. 13, 1913.

"Amasa Clark:

"Your county, town and state tax, in said town for the year 1913 as committed to me to collect, and which you are requested to pay, is $3.

"The delivery of this bill is considered a legal demand. J. E. Gray, Collector."

On the margin of the notice were the dates on which the installments of tax on real and personal property, if any, would be due, and, on the back, attention was called to the statute requiring municipal officers to publish in the town reports the names and amounts of delinquent taxpayers. It is admitted that the plaintiff received this notice more than 12 days prior to his arrest, and the single question reserved to this court is whether this was a sufficient preliminary demand to justify the subsequent arrest under the statute, which is as follows:

"If a person so assessed, for twelve days after demand refuses or neglects to pay his tax and to show the constable or collector sufficient goods and chattels to pay it, such officer may arrest and commit him to jail, until he pays it, or is discharged by law." R. S. c. 10, § 20.

The plaintiff claims that this means a demand in person, while the defendant contends that it is merely such a notification as will give the taxpayer knowledge that a tax is assessed against him, the amount thereof, and a request to pay.

It is the opinion of the court that a demand in person is contemplated. The word "demand" has a twofold meaning. It is often used in the sense of request. Thus a request, either oral or by letter, for the payment of a bill, is sufficient to fix the time from which interest shall accrue (Chadbourne v. Hanscorn, 56 Me. 554); and, if money is payable on demand, the commencement of a suit is sufficient (Hunter v. Teaks, 74 Me. 363). It is in this sense that the word "demand" is placed upon the tax bill. It is merely a request to pay. The blank used is the ordinary form sent to every taxpayer in town, to the financially responsible as well as to the financially irresponsible, as the first step towards collection. It is neither sent by the collector as the statutory demand preliminary to arrest, nor is it so considered by the recipient. Otherwise, after the lapse of 12 days, every taxpayer would be liable to immediate arrest, unless he pay his tax or show the collector sufficient goods and chattels to pay it. Moreover, the notice itself disproves such a claim. Had the plaintiff's tax been assessed upon real or personal property, the third installment would not have fallen due until November 1, 1913, and the fourth on December 30, 1913, as the notice specifies, while the 12 days from the date of the notice expired on October 25, 1913. It can hardly be claimed that the taxpayer, who has paid the first two installments, can be subject to arrest before the others are due.

The word "demand," in its second sense, denotes a request in person and implies personal presence. When used in connection with or as a part of an official act, it is as a general rule employed with this meaning. In other words, when an officer is required to demand anything by virtue of a warrant or execution, in the absence of words prescribing a different method, the demand must usually be made in person. Such is the character of the demand made by an attaching officer upon a receiptor, so far as the cases show (Hapgood v. Hill, 20 Me. 372; Gilmore v. McNeil, 45 Me. 599; Id., 46 Me. 532; Bicknell v. Lewis, 49 Me. 91; Bangs v. Beacham, 68 Me. 425; Foss v. Norris, 70 Me. 117; Moore v. Fargo, 112 Mass. 254); and in Phelps v. Gilchrist, 28 N. H. 266, and Sanborn v. Buswell, 51 N. H. 573, a personal demand was deemed indispensable. And the same holds true in case of a demand by an officer, holding an execution, upon a person adjudged a trustee, preliminary to bringing a writ of scire facias (R. S. c. 88, § 07), and of the dissolution of the attachment by trustee process, unless the goods, effects, or credits are demanded by virtue of the execution within 30 days after final judgment (R. S. c. 88, § 73). A personal demand is here implied. Franklin Bank v. Bachelder, 23 Me. 60, 39 Am. Dec. 601; Bachelder v. Merrimnn, 34 Me. 69; Cheney v. Whitely, 9 Cush. (Mass.) 289; Thompson v. King, 173 Mass. 439, 53 N. E. 910.

If it is the intention that an official demand shall be made in any other manner or by any other method than in person, then that manner or that method is definitely specified. To illustrate again by the statute relating to trustee attachments: If the officer holding the execution cannot find the trustee in the state, it is expressly provided that a copy may be left at his dwelling house or last and usual place of abode, either within or without the state, with notice to the trustee indorsed thereon, "And such notice in either case is a sufficient demand." R. S. c. 88, S 75.

Other illustrations of the same rule may be found in the tax statute itself. As preliminary to enforcing a lien upon real estate, the collector is specifically directed to give to the taxpayer or leave at his last and usual place of abode a statement in writing, demanding payment within ten days after the service of such notice (R, S. c. 10, § 28); and, when a collector issues his warrant to a sheriff, deputy sheriff, or constable directing him to distrain the person or property of delinquent taxpayers, before such officer shall serve any such warrant he shall deliver to the delinquent, or leave at his last and usual place of abode a summons from the collector, stating the amount of tax due, and that it must be paid within 10 days from the time of leaving such summons (chapter 10, §§ 67-69); and 10 days' written notice is required for owners of real estate advertised for sale (section 75).

These...