Spinney v. Town of Seabrook

• Decision Date: 19 July 1918
• Citation: 104 A. 248
• Parties: SPINNEY v. TOWN OF SEABROOK et al.
• Court: New Hampshire Supreme Court

104 A. 248

SPINNEY

v. TOWN OF SEABROOK et al.

Supreme Court of New Hampshire. Rockingham.

July 19, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Civil Process.]

Young and Peaslee, JJ., dissenting.

Transferred from Superior Court, Rockingham County; Allen, Judge.

Action by Ceylon Spinney against the Town of Seabrook, County of Rockingham, and another. Transferred from superior court to Supreme Court. Claim against defendant county disallowed; judgment for other defendants.

Action against the town of Seabrook, county of Rockingham, and one Perkins, as special tax collector of the defendant town, brought to recover certain prison charges and board from October 11, 1913, to December 18, 1914, of a delinquent taxpayer of Seabrook, who was committed to the county jail, of which the plaintiff was the jailer, by Perkins acting under a warrant given by the selectmen of the town for the collection of taxes. No bond for the prisoner's board in jail was demanded by the plaintiff and no bond for that purpose was given. The board was furnished by the plaintiff, for which he has received no pay. The taxpayer upon taking the poor debtor's oath was discharged. The county and the town moved for directed verdicts in their favor. Perkins moved that the action be dismissed as to him. Without ruling on these motions, the superior court, Allen, J., transferred the case from the October term, 1917, of the superior court.

Ernest L. Guptill and Ralph C. Gray, both of Portsmouth, for plaintiff. William H. Sleeper, of Exeter, for the County. Page, Bartlett & Mitchell, of Portsmouth, for the Town and for Perkins.

WALKER, J. By section 8, c. 60, P. S. (re-enacted in section 5, c. 82, Laws 1913), it is provided that:

"For want of goods and chattels whereon to make distress, the collector may take the body of any person neglecting or refusing to pay the tax assessed against him, and commit him to the common jail."

Section 9 provides that:

"The jailer shall receive and detain such person in his custody until he pays such tax, cost of commitment, and charges of imprisonment, or until he is otherwise discharged by due course of law."

An arrest by a collector of taxes, under his warrant authorizing such procedure for the nonpayment of taxes, is a civil, not a criminal, process. The purpose of the arrest and of the commitment to jail is not to punish the prisoner as a criminal for failure to pay the tax assessed against him, but to compel the payment of the tax as a civil obligation. For the accomplishment of this purpose, "every collector, in the collection of taxes committed to him and in the service of his warrant, shall have the powers vested in constables in the service of civil process." P. S. c. 60, § 1; Laws 1913, c. 82, § 6. That the collection of taxes is deemed by the Legislature to be a civil process is also recognized in section 17 of the same chapter, where it is provided that a tax may be "collected by suit at law or bill in equity." The imprisonment in jail of one who fails to meet his tax obligation is merely one means of collecting the tax, in the same way that the imprisonment of a debtor on execution is one means of collecting the debt. In Butler v. Washburn, 25 N. H. 251, and in Gordon v. Clifford, 28 N. H. 402, an arrest upon a tax warrant was treated as having been made in a civil proceeding, and no case holding a contrary doctrine has been called to our attention.

The contention therefore that the county is liable for the board of the prisoner while in jail assumes that such liability may exist when the commitment is made in a civil suit, for there is no statute explicitly imposing that burden upon the county in proceedings for the collection of taxes. If there is such a liability, it can only be derived from the general statute providing for the support of prisoners in jail. But that statute (P. S. c. 282, § 4) is as follows:

"Every jailer shall provide each prisoner in his custody with necessary sustenance, * * * and the county commissioners shall allow him, out of the county treasury, a reasonable compensation for the support of all prisoners confined on criminal process."

That the county under this statute is not liable for the board of prisoners confined in jail on civil process is so obvious as to require no argument, and such has been the purport of the decisions on this subject. Amherst v. Hollis, 9 N. H. 107; De Comcey's Petition, 22 N. H. 368; Plymouth v. Haverhill, 69 N. H. 400, 46 Atl. 460; Locke v. Belknap County, 71 N. H. 208, 51 Atl. 914. In the absence of statutory authorization, no reason is apparent for a different conclusion whether the imprisonment is for the collection of a tax or the collection of an ordinary debt. While an action at law ordinarily does not lie against a county (Day v. Coos County, 77 N. H. 532, 93 Atl. 965), the question of law as to the liability of the county has been considered as though it had been regularly presented as a claim.

Nor is it apparent why the collector should be liable. He committed the prisoner in the execution of his warrant, which authorized him to proceed in that way in the attempt to collect the tax. Like a sheriff: in committing a defendant upon an execution authorizing the act, he incurred no liability for the prisoner's support in jail. Stevens v. Merrill, 41 N. H. 309. That was a matter in reference to which he could exercise no control, and for which he could not be held responsible under the statute, which provides that a collector of taxes shall not be liable to any suit, "for any cause whatever, except his own official misconduct." P. S. c. 60, § 16. Kelley v. Noyes, 43 N. H. 209. Acting as a public officer (Winchester v. Stockwell, 76 N. H. 193, 81 Atl. 526), he incurred no liability for the board of the prisoner.

The town of Seabrook in its private capacity did not authorize or direct the arrest and imprisonment of the delinquent taxpayer. The selectmen in issuing the tax warrant to the collector did not act as the agents of the town. It had no control over them in the performance of that duty, which was imposed upon them, and not upon the town, by the statute. P. S. c. 59, § 7. The town had no more right to instruct the selectmen to issue or not to issue the warrant, or to direct the collector how to execute the warrant, than it has to abate a tax (Hampstead v. Plaistow, 49 N. H. 84, 97), or to pass a vote in town meeting "directing the collection of delinquent assessments so fast only as can be done with convenience and without pressure" (Northumberland v. Cobleigh, 59 N. H. 250, 255). In an action for the recovery of a tax it was said in Canaan v. District, 74 N. H. 517, 536, 70 Atl. 250, 257:

"The plaintiff as a town in any capacity has no control over the questions involved in this tax. It cannot by town vote direct whether the property in question should be assessed for taxation or not, or determine its value. By similar action it could not authorize this suit. It has no control over it. * * * Although * * * a party to the controversy, which is between the state in the exercise of its taxing power and the taxpayer defending."

"The taxes collectible under the statute are in no sense debts owed to the town as a corporation, but to the public." Winchester v....