Morrill v. Hamel

Decision Date28 February 1958
Citation148 N.E.2d 283,337 Mass. 83
PartiesCharles K. MORRILL v. Frank E. HAMEL. Charles K. MORRILL v. Edward A. BUTLER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edward J. Barshak, Boston, for plaintiff.

No argument nor brief for defendants.


WILKINS, Chief Justice.

In these actions of tort for false imprisonment against two deputy tax collectors, verdicts for the defendants were directed on the plaintiff's opening. The jury were told that on February 7, 1953, the plaintiff, then on active duty with the United States Air Force, was in uniform at his home in the city of Newburyport when the defendants appeared with a tax warrant issued by the city tax collector. The warrant instructed the defendants to collect the excise tax on the plaintiff's automobile and failing that to arrest and incarcerate him. The warrant was regular on its face, and all the required statutory notices for the collection of the excise tax had been served upon the plaintiff prior to the date of the warrant. After the plaintiff informed the defendants that he did not have the money, they arrested him and brought him to the local jail, where he was kept until later in the day when military representatives from the plaintiff's Air Force base came and paid the tax. The plaintiff was chairman of the city planning board and well known in the community.

The plaintiff's counsel informed the court that there was no actual malice on the part of the defendants, and that there was no assault. He stated that the sole basis for the case was that at the time of the arrest the plaintiff was in the military service, a fact which he made known to the defendants, and for that reason he was exempt from arrest on this particular warrant because of the Soldiers' and Sailors' Civil Relief Act of 1940. U.S.C. (1952 ed.) Title 50, Appendix, § 501 et seq., 50 U.S.C.A. Appendix, § 501 et seq.

By this Federal act 'provision is made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation, and to this end the following provisions are made for the temporary suspension of legal proceedings and transactions which may prejudice the civil rights of persons in such service * * *.' § 510.

There is no mention of civil arrest in the act. The plaintiff refers to a part of § 560, which, according to subsection (1), 'shall apply when any taxes * * * whether falling due prior to or during the period of military service, in respect of personal property * * * are not paid.' 1 His main reliance is subsection (2), which reads: 'No sale of such property shall be made to enforce the collection of such tax or assessment, or any proceeding or action for such purpose commenced, except upon leave of court granted upon application made therefor by the collector of taxes or other officer whose duty it is to enforce the collection of taxes or assessments. The court thereupon, unless in its opinion the ability of the person in military service to pay such taxes or assessments is not materially affected by reason of such service, may stay such proceedings or such sale, as provided in this Act [sections 501-548 and 560-590 of this Appendix], for a period extending not more than six months after the termination of the period of military service of such person.'

We shall assume that the excise tax on registered motor vehicles in lieu of local tax (see G.L. [Ter.Ed.] c. 60A) is a tax 'in respect of personal property' under § 560 (1), (2).

We shall pass by any question due to the fact that the opening contains no statement that there was no leave of court granted upon application of the collector of taxes.

We rest our decision upon the broad principle stated by Chief Justice Shaw in Wilmarth v. Burt, 7 Metc. 257, 259, 'As a general rule, the officer is bound only to see that the process, which he is called upon to execute, is in due and regular form, and issues from a court having jurisdiction of the subject. In such case, he is justified in obeying his precept, and it is highly necessary to the due, prompt and energetic execution of the commands of the law, that he should be so.' As was said in David v. Larochelle, 296 Mass. 302, 304, 5 N.E.2d 571, 572, citing many of our decisions: 'The principle to be deduced from the cases is that the officer is entitled to rely upon the face of his precept. He is not expected to inquire into extrinsic facts which might render it invalid in the particular instance or to govern himself in executing it by his belief as to what those facts are.' This is the rule of the Restatement of Torts, §§ 122, 124, particularly comment b. See Prsser, Torts, 2d Ed., § 25. The Larochelle case describes the majority opinion in Tellefsen v. Fee, 168 Mass. 188, 46 N.E. 562, 45 L.R.A. 481, as 'exceptional' and one of 'very unusual circumstances' (296 Mass. at page 305, 5 N.E.2d at page 572).

We see no occasion for reading into the Federal act language which would have the effect of penalizing an officer who is executing a precept directed to him in peremptory terms. As is said in Restatement: Torts, § 123, comment d: 'Aside from statute, only foreign sovereigns and diplomatic representatives, and members of their households and official staff, are immune from arrest under a warrant. Other persons or groups of persons are immune from arrest in the sense that they are entitled to habeas corpus to secure their release...

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5 cases
  • Rodgers v. State
    • United States
    • Maryland Court of Appeals
    • June 6, 1977
    ...17 Ill. 373 (1856); Sandford v. Nichols, 13 Mass. 286 (1816); Commonwealth v. Kirby, 56 Mass. (2 Cush.) 577 (1849); Morrill v. Hamel, 337 Mass. 83, 148 N.E.2d 283 (1958); Missouri v. Dickerson, 24 Mo. 365 (1847); Montana v. Bradshaw, 53 Mont. 96, 161 P. 710 (1916); North Carolina v. Curtis,......
  • Di Maggio v. Mystic Bldg. Wrecking Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • April 11, 1960
    ...issued by a court within the area of its usual jurisdiction and valid on its face, may provide an analogy. See Morrill v. Hamel, 337 Mass. 83, 85-87, 148 N.E.2d 283. The notice gave DiMaggio at least until January 7, 1957, to comply with the order or to appeal from it. This, in effect, was ......
  • State v. Medina
    • United States
    • Iowa Supreme Court
    • March 11, 1969
    ...State v. Cesero, 146 Conn. 375, 151 A.2d 338, 340--341; People v. Perdew, 78 Ill.App.2d 331, 223 N.E.2d 308, 310; Morrill v. Hamel, 337 Mass. 83, 148 N.E.2d 283, 285--286; State v. Weed, 21 N.H. 262; People v. Briggs, 19 N.Y.2d 37, 277 N.Y.S.2d 662, 224 N.E.2d 93, 96 and citations; Meador v......
  • Ortiz v. Hampden County
    • United States
    • Appeals Court of Massachusetts
    • May 27, 1983
    ...the conduct of those who prepared the warrant. See David v. Larochelle, 296 Mass. 302, 304, 5 N.E.2d 571 (1936); Morrill v. Hamel, 337 Mass. 83, 85-86, 148 N.E.2d 283 (1958). The complaint gives no indication of what specific acts or omissions by the county employees are alleged to have con......
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