Gilmore v. Penobscot Count

• Decision Date: 26 November 1910
• Citation: 107 Me. 345,78 A. 454
• Parties: GILMORE, STATE TREASURER v. PENOBSCOT COUNT
• Court: Maine Supreme Court

78 A. 454

107 Me. 345

GILMORE, STATE TREASURER

v. PENOBSCOT COUNT

Supreme Judicial Court of Maine.

Nov. 26, 1910.

Syllabus by the Court.

Report from Supreme Judicial Court, Hancock County.

Action by Pascal P. Gilmore, State Treasurer, against the County of Penobscot. Facts agreed, and case reported to the law court Judgment for plaintiff.

Action of debt brought against the county of Penobscot, in the name of the Treasurer of the state of Maine, for the benefit of the state, under the provisions of section 5 of chapter 92 of the Public Laws of 1905, as amended by section 1 of chapter 255 of the Public Laws of 1909, to recover the sum of $7,171.78 paid by the State Treasurer for the services and expenses of the deputy enforcement commissioners, during the months of August, September, October, November, and December, 1909, in enforcing, in the cities and towns in Penobscot county, the law against the manufacture and sale of intoxicating liquors. Plea, the general issue. An agreed statement of facts was filed and the case reported to the law court with the stipulations that "if the section of the statute upon which plaintiff bases the right to recover is in violation of the provisions of the Constitution of the state of Maine, or if other sufficient defense in law exist, then plaintiff is to be nonsuited; otherwise judgment is to be entered for plaintiff in accordance with the demands of the writ" The case is stated in the opinion.

Section 5 of chapter 92 of the Public Laws of 1905, as amended by section 1 of chapter 255 of the Public Laws of 1909, reads as follows: "Sec. 5. It shall be the duty of the said deputy enforcement commissioners to exercise all the powers herein conferred when, where, and as directed by said commission, and for their services they shall be paid three dollars per day and the actual expenses occasioned by the performance of such duty, and shall, at such time as may be fixed by the commission, present their accounts for approval and after approval the governor and council shall draw their warrant against any moneys in the treasury not otherwise appropriated, in payment thereof. The state auditor on or before the fifteenth day of each month shall notify the county commissioners of each county where the powers aforesaid are executed, of the sum paid by the state treasurer during the preceding calendar month for the services and expenses of said deputies in such county, and such sum shall be paid by the county treasurer of said county to the treasurer of state within thirty days after such notice is mailed. In case of failure to make such payment within said thirty days an action of debt may be maintained against said county in the name of the treasurer of state, for the benefit of the state to recover said sum, or the amount payable as aforesaid may be deducted by the treasurer of state from any sum due from the state to such county."

Argued before EMERY, C. J, and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, CORNISH, KING, and BIRD, JJ.

Warren C. Philbrook, Atty. Gen., for plaintiff.

George E. Thompson, Co. Atty., for defendant.

EMERY, C. J. By chapter 92 of the Public Laws of 1905 the Governor was authorized to appoint a commission of three persons to be known as enforcement commissioners. They were empowered to appoint deputies with authority to exercise in any part of the state all the common-law and statutory powers of sheriffs in their respective counties, in the enforcement of the laws against the manufacture and sale of intoxicating liquors. It was further provided in the act that upon being satisfied that the local authorities failed to enforce such laws in any city or town in the state the commissioners should instruct their deputies in the county to enforce those laws, and also might send deputies from other parts of the state for that purpose. By an amendatory act, chapter 255 of the Public Laws of 1909, it was further provided that the deputies should be paid by the state a per diem compensation and their actual expenses while in the performance of their duties under the act, and that the treasurer of the county in which the deputies exercised their powers under the statute should pay to the State Treasurer the sums so paid out to such deputies. In case such repayment was not made, the State Treasurer was authorized to recover the amount in action of debt in his name, in behalf of the state against the county.

Under the statute cited, the Governor appointed three enforcement commissioners who duly qualified. Being satisfied that the local authorities in Penobscot county were not enforcing the law, the commissioners during the last five months of 1909 instructed their deputies to enforce there the law against the manufacture and sale of intoxicating liquors. The bills of the deputies for such services were duly audited by the State Auditor and paid from the state treasury, and repayment thereof demanded from the treasurer of Penobscot county. The county treasurer not complying with the demand, this action...